Lazic v Trump Vil. Section 3, Inc.

Lazic v Trump Vil. Section 3, Inc.

Opinion

 [*776]  [**644]   In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated January 6, 2015, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

On March 25, 2013, the plaintiff allegedly tripped and fell over a chain hanging from two yellow posts at a driveway entrance to a property owned by the defendant. The plaintiff testified that it was raining and dark outside at the time of the accident. After the accident, the plaintiff commenced this action to recover damages for personal injuries. The defendant moved for summary judgment on the ground that the hanging chain [***2]  was open and obvious and not inherently dangerous as a matter of law. The Supreme Court granted the motion.

While a possessor of real property has a duty to maintain that property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233, 241, 352 NE2d 868, 386 NYS2d 564 [1976]), there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous (see Barone v Risi, 128 AD3d 874, 9 NYS3d 620 [2015]; Varon v New York City Dept. of Educ., 123 AD3d 810, 998 NYS2d 433 [2014]; Schiavone v Bayside Fuel Oil Depot Corp., 94 AD3d 970, 942 NYS2d 585 [2012]). The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a  [**645]  question of fact for a jury (see Gordon v Pitney Bowes Mgt. Servs., Inc., 94 AD3d 813, 942 NYS2d 155 [2012]; Cassone v State of New York, 85 AD3d 837, 925 NYS2d 197 [2011]). "Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances" (Katz v Westchester County Healthcare Corp., 82 AD3d 712, 713, 917 NYS2d 896 [2011]; see Barone v Risi, 128 AD3d at 874; Baron v 305-323 E. Shore Rd. Corp., 121 AD3d 826, 994 NYS2d 651 [2014]). "A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" (Katz v Westchester County Healthcare Corp., 82 AD3d at 713; see Maneri v Patchogue-Medford Union Free Sch. Dist., 121 AD3d 1056, 996 NYS2d 64 [2014]; Russo v Home Goods, Inc., 119 AD3d 924, 990 NYS2d 95 [2014]; Stoppeli v Yacenda, 78 AD3d 815, 816, 911 NYS2d 119 [2010]).

 [*777]  Here, contrary to the Supreme Court's determination, the defendant failed to establish, prima facie, that the chain was open and obvious, i.e., readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident (see Baron v 305-323 E. Shore Rd. Corp., 121 AD3d at 826; Zhuo Zheng Chen v City of New York, 106 AD3d 1081, 966 NYS2d 177 [2013]; Hadgraft v Morin, 94 AD3d 701, 941 NYS2d 513 [2012]; Clark v AMF Bowling Ctrs., Inc., 83 AD3d 761, 921 NYS2d 273 [2011]; Bloomfield v Jericho Union Free School Dist., 80 AD3d 637, 915 NYS2d 294 [2011]; cf. Callen v Comsewogue School Dist., 95 AD3d 814, 942 NYS2d 818 [2012]; Plis v North Bay Cadillac, 5 AD3d 578, 773 NYS2d 451 [2004]). In light [***3]  of the fact that the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law, the court should have denied the motion regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 NE2d 642, 487 NYS2d 316 [1985]; Cassone v State of New York, 85 AD3d 837, 925 NYS2d 197 [2011]). Mastro, J.P., Dickerson, Miller and Maltese, JJ., Concur.

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