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Caicedo v. Cheven Keeley & Hatzis

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 26, 2009

ALICIA CAICEDO, PLAINTIFF-APPELLANT,
v.
CHEVEN KEELEY & HATZIS, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 8, 2008, which granted defendants' motion for summary judgment, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Nardelli, Buckley, DeGrasse, JJ.

115655/05

Defendants failed to establish their prima facie entitlement to judgment as a matter of law as they failed to make a prima facie showing that the condition complained of was not inherently dangerous (see Salomon v Prainito, 52 AD3d 803, 805 [2008]). An open and obvious hazard may negate the duty to warn, but it does not negate liability in negligence, because an owner still has a duty to ensure that its premises are maintained in a reasonably safe condition (see Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69 [2004]; Cupo v Karfunkel, 1 AD3d 48 [2003]). Here, there are factual questions as to both legal issues.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090226

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