May 28, 2013
William Philips, Plaintiff-Respondent,
Paco Lafayette LLC, et al., Defendants-Appellants, Rusabo 300 LLC, et al., Defendants.
Marin Goodman, LLP, Harrison (Richard P. Marin of counsel), for appellants.
Kahn Gordon Timko & Rodriques, P.C., New York (Nicholas I. Timko of counsel), for respondent.
Mazzarelli, J.P., Andrias, DeGrasse, Freedman, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 12, 2012, which, to the extent appealed from, denied defendants-appellants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendants-appellants' motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Plaintiff commenced the instant action for personal injuries allegedly sustained when he tripped over a concrete curb at the top of the Broadway/Lafayette subway station exit located on the south side of East Houston Street, between Lafayette Street and Crosby Street. The concrete curb was on the premises owned by defendant Paco Lafayette LLC and leased by defendant BP Products North America, Inc. d/b/a Service Station for use as a gas station, and was immediately adjacent to the subway station exit. According to plaintiff's testimony and the color photographs in the record, the curb measured about 8 inches high and 10 inches wide, ran parallel to the subway station guard rail, and protruded beyond the rail by a few feet.
The photographs show that the concrete curb was open and obvious, not inherently dangerous and readily observable by one's reasonable use of his or her senses (see Boyd v New York City Hous. Auth., __ A.D.3d __, 2013 NY Slip Op. 02507 [1st Dept 2013]; Tillman v New York City Hous. Auth., 15 A.D.2d 738 [1st Dept 1962], affd 12 N.Y.2d 898 ). The photographs also undermine plaintiff's contention that the unpainted concrete curb created optical confusion, or that its placement rendered it likely to be easily overlooked (see Boyd, __ A.D.3d __, 2013 NY Slip Op. 02507; cf. Saretsky v 85 Kenmare Realty Corp., 85 A.D.3d 89, 92 [1st Dept 2011]; Westbrook v WR Activities-Cabrera Mkts., 5 A.D.3d 69, 75 [1st Dept 2004]). Rather, the evidence establishes that the accident was caused by plaintiff's inattentiveness (see Langer v 116 Lexington Ave., Inc., 92 A.D.3d 597, 598-599 [1st Dept 2012]; cf. Saretzky, 85 A.D.3d at 92). We note that the accident occurred on a sunny afternoon, and BP's area site manager testified that BP had not received any complaints concerning the concrete curb prior to the present incident (see Langer, 92 A.D.3d at 598-599).