Marlene Ross and Jack A. Ebner, as executors of the estate of Elfi Ebner, et al., appellants,
Bretton Woods Home Owners Association, Inc., respondent. Index No. 21746/10
& Meyers LLP, Newburgh, NY (George A. Kohl II of
counsel), for appellants.
& Associates, P.C., Syosset, NY (Frank A. Polacco of
counsel), for respondent.
C. DILLON, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, COLLEEN
D. DUFFY, JJ.
DECISION & ORDER
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.
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.
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]).
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.
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,
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).
death during the pendency of the appeal has rendered academic
the remaining contention concerning the motion ...