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Supreme Court of New York, Appellate Division, Second Department
October 11, 2002, Argued ; October 27, 2003, Decided
[*49] [**41] Townes, J.
On this appeal we are asked to consider whether proof that an allegedly dangerous condition on real property is "open and obvious" precludes a finding of liability against a landowner. Recognizing that our decisions on this issue may appear inconsistent, we take this opportunity to clarify that the open and obvious nature of an allegedly dangerous condition is relevant to the issue of the comparative fault of the plaintiff and does not preclude a finding of liability against the landowner.
The plaintiff Denise Cupo was employed as a courier for Federal Express Corporation (hereinafter Fed Ex) when she was injured while making a delivery to the appellants' building in Brooklyn. The plaintiff was pulling a manual hydraulic lift loaded with boxes across the public sidewalk from her truck toward the delivery entrance at the appellants' building when the lift suddenly stopped and turned over, allegedly causing the plaintiff to lose her balance and fall to the ground. The plaintiff claims that, as a result [***3] of the accident, she suffered a herniated disc in her lumbar spine which required surgical intervention.
The plaintiff testified at her examination before trial that the front wheel of the lift caught in a depressed area of the sidewalk [*50] where the sidewalk met the metal grille of a four-by-eleven feet transformer vault installed and maintained by the defendant Consolidated Edison Company of New York, Inc. (hereinafter Con Edison). The manual lift and pallet used by the plaintiff to transport the boxes were provided by the appellant American Stock Transfer Co., which received Fed Ex deliveries of 15 to 30 large heavy boxes daily. The plaintiff commenced this action and asserts that the City of New York, as the owner of the sidewalk, Con Edison, as the owner of the transformer vault, the appellants, as the owner of the property abutting the public sidewalk, and two tenants of the appellants' building were negligent in that they created or allowed the continued existence of a dangerous condition in the uneven, sunken, and depressed sidewalk near the [**42] metal grating, and that the condition caused her to fall.
Following the completion of discovery, the appellants moved for summary judgment [***4] dismissing the complaint insofar as asserted against them on the ground that, as abutting landowners, they were not responsible for the defect that allegedly caused the plaintiff's injury because the defect was on a public sidewalk owned by the City and near a grille over a vault owned by Con Edison. The appellants also contended that, in any event, they owed no duty to the plaintiff because the condition that allegedly caused her to fall was open and obvious and known to her, as she had previously delivered boxes to that property.
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1 A.D.3d 48 *; 767 N.Y.S.2d 40 **; 2003 N.Y. App. Div. LEXIS 11069 ***
Denise Cupo, Respondent, v. Michael Karfunkel et al., Appellants, et al., Defendants. (And a Third-Party Action.) (Index No. 16535/93)
Prior History: [***1] Appeal from an order of the Supreme Court, Kings County (Joseph F. Bruno, J.), entered December 12, 2001 in an action to recover damages for personal injuries. The order, insofar as appealed from, denied defendants-appellants' motion for summary judgment dismissing the complaint insofar as asserted against them. Justice Altman was substituted for the late Justice O'Brien (see 22 NYCRR 670.1 [c]).
Disposition: Order affirmed insofar as scope of appeal.
sidewalk, landowner, dangerous condition, appellants', safe condition, summary judgment, warn
Civil Procedure, Trials, Jury Trials, Province of Court & Jury, Torts, Elements, Duty, General Overview, Premises & Property Liability, General Premises Liability, Defenses, Comparative Fault