Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ross v. Bretton Woods Home Owners Association Inc.

Supreme Court of New York, Second Department

June 7, 2017

Marlene Ross and Jack A. Ebner, as executors of the estate of Elfi Ebner, et al., appellants,
v.
Bretton Woods Home Owners Association, Inc., respondent. Index No. 21746/10

          Jacoby & Meyers LLP, Newburgh, NY (George A. Kohl II of counsel), for appellants.

          Shein & Associates, P.C., Syosset, NY (Frank A. Polacco of counsel), for respondent.

          MARK C. DILLON, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Asher, J.), dated April 30, 2014, which granted the defendant's motion for summary judgment dismissing the complaint, and denied, as academic, their motion for a preference pursuant to CPLR 3403(a)(4), and (2) a judgment of the same court entered August 12, 2014, which, upon the order, is in favor of the defendant and against them dismissing the complaint.

         ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment is reversed, on the law, with one bill of costs, the defendant's motion for summary judgment dismissing the complaint is denied, and the order is modified accordingly.

         The appeal from the order must be dismissed because the right of direct appeal therefrom terminated upon the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

         Elfi Ebner (hereinafter Ebner) contended that she fell when she stepped down a single-step riser on a walkway located in a condominium complex maintained by the defendant. Thereafter, Ebner, and her husband suing derivatively, commenced this action against the defendant to recover damages for personal injuries. They moved for a trial preference based on Ebner's age, and the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the defendant's motion and denied, as academic, the motion for a preference. In the interim, Ebner died, and the executors of her estate were substituted for her.

         To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendant must establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it (see Baron v 305-323 E. Shore Rd. Corp., 121 A.D.3d 826, 827; Villano v Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061). Moreover, 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), 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 Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d 776; Weiss v Half Hollow Hills Cent. School Dist., 70 A.D.3d 932, 933).

         Here, in support of its motion for summary judgment, the defendant submitted, among other things, Ebner's deposition testimony, deposition testimony of certain of the defendant's employees, and an expert affidavit. Contrary to the defendant's contention, Ebner identified the cause of her fall as her inability to see the single step on the walkway she was traversing (see Hadgraft v Morin, 94 A.D.3d 701). The defendant's submissions failed to eliminate triable issues of fact as to whether the step constituted a dangerous condition or whether the subject step was open and obvious, and not inherently dangerous as a matter of law (see id.; Katz v Westchester County Healthcare Corp., 82 A.D.3d 712, 713; Gubitosi v Pulte Homes of N.Y., LLC, 81 A.D.3d 690, 691; Roros v Oliva, 54 A.D.3d 398, 399-400; Kempter v Horton, 33 A.D.3d 868, 869; Scher v Stropoli, 7 A.D.3d 777; see generally Schwartz v Reisman, 135 A.D.3d 739, 740). The affidavit of the defendant's expert failed to establish, as a matter of law, that a handrail that the defendant contends was adjacent to the walkway on the date of the subject accident provided a sufficient visual cue to alert pedestrians to the presence of the step. Furthermore, contrary to the defendant's assertion, it failed to demonstrate that it did not have constructive notice of the dangerous condition prior to the subject accident (see Schwartz v Reisman, 135 A.D.3d at 740; DeSalvio v Suffolk County Water Auth., 127 A.D.3d 804, 806; Alayev v Juster Assoc., LLC, 122 A.D.3d 886, 887). Accordingly, the defendant failed to establish its prima facie entitlement to judgment as a matter of law, and there is no need to examine the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

         Ebner's death during the pendency of the appeal has rendered academic the remaining contention concerning the motion ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.