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Chen v. City of New York

Supreme Court of New York, Second Department

May 29, 2013

Zhuo Zheng Chen, et al., appellants,
v.
City of New York, et al., respondents, et al., defendant. Index No. 29293/09

Danker, Milstein & Ruffo, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and Drake A. Colley of counsel; Michelle L. Fox on the brief), for respondents.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Ash, J.), dated January 20, 2012, which granted the motion of the defendants City of New York, City University of New York, and Kingsborough Community College for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the respondents' motion for summary judgment dismissing the complaint insofar as asserted against them is denied.

The injured plaintiff allegedly fell from a loading dock owned and operated by the defendants City of New York, City University of New York, and Kingsborough Community College (hereinafter collectively the City defendants), sustaining injuries. The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, the City defendants. The City defendants moved for summary judgment, contending, inter alia, that the condition of the loading dock was open and obvious and not inherently dangerous. The Supreme Court granted the motion, and the plaintiffs appeal.

While a landowner has a duty to maintain its premises in a reasonably safe manner (see Basso v Miller, 40 N.Y.2d 233, 241), it has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous (see Tyz v First St. Holding Co., Inc., 78 A.D.3d 818; Maraia v Church of Our Lady of Mount Carmel, 36 A.D.3d 766). Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the circumstances of each case and is generally a question of fact for the jury (see Surujnaraine v Valley Stream Cent. High School Dist., 88 A.D.3d 866; Katz v Westchester County Healthcare Corp., 82 A.D.3d 712). "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" (Mazzarelli v 54 Plus Realty Corp., 54 A.D.3d 1008, 1009; see Clark v AMF Bowling Ctrs., Inc., 83 A.D.3d 761).

Here, the City defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, as a triable issue of fact exists as to whether the accident site area was adequately lit and whether the condition of the loading dock was open and obvious and not inherently dangerous (see Hadgraft v Morin, 94 A.D.3d 701; Clark v AMF Bowling Ctrs., Inc., 83 A.D.3d 761; Kempter v Horton, 33 A.D.3d 868; Miner v Northport Yacht Club, 15 A.D.3d 362). Since the City defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851).

Accordingly, the Supreme Court should have denied the City defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

MASTRO, J.P., RIVERA, SGROI and COHEN, JJ., concur.


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