- February 15, 2018
Krentsel & Guzman, LLP (Pollack, Pollack, Isaac & De
Cicco, LLP, New York, NY [Brian J. Isaac and Michael H. Zhu],
of counsel), for appellant.
Brisbois Bisgaard & Smith LLP, New York, NY (Nicholas P.
Hurzeler of counsel), for respondents City of New York and
New York City Department of Transportation.
J. Toomey, New York, NY (Eric P. Tosca of counsel), for
respondent V.N.A. Utility Contracting Co., Inc.
& Johnson, P.C., New York, NY (Peter James Johnson, Jr.,
and Joanne Filiberti of counsel), for respondent Verizon New
REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN
ANGELA G. IANNACCI, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiff appeals from an order of Supreme Court, Richmond
County (Desmond A. Green, J.), dated April 16, 2015. The
order, insofar as appealed from, granted the separate motions
of the defendants City of New York and New York City of
Department of Transportation, the defendant Verizon New York,
Inc., and the defendant V.N.A. Utility Contracting Co., Inc.,
for summary judgment dismissing the complaint insofar as
asserted against each of them.
that the order is affirmed insofar as appealed from, with one
bill of costs payable to the defendants appearing separately
and filing separate briefs.
plaintiffs decedent allegedly was injured when she tripped
and fell on the sidewalk in front of her residence. The
accident allegedly occurred when the decedent stepped
backwards and her left foot became caught in a depressed area
surrounding a utility box that was recessed into the
sidewalk. The utility box was owned by the defendant Verizon
New York, Inc. (hereinafter Verizon), and had been installed
by the defendant V.N.A. Utility Contracting Co., Inc.
(hereinafter VNA), years before the decedent's accident.
Thereafter, the decedent, and her husband suing derivatively,
commenced this action. Subsequently, the defendants City of
New York and New York City Department of Transportation
(hereinafter together the City defendants), Verizon, and VNA
separately moved for summary judgment dismissing the
complaint insofar as asserted against each of them. The
Supreme Court, inter alia, granted the defendants'
motions. The plaintiff Anthony Graffino, as the administrator
of the decedent's estate, and in his individual capacity,
is '"no duty to protect against an open and obvious
condition provided that, as a matter of law, the condition is
not inherently dangerous'" (Genefar v Great Neck
ParkDist., 156 A.D.3d 762, 763, quoting Salomon v
Prainito, 52 A.D.3d 803, 805; see Mathis v D.D.
Dylan, LLC, 119 A.D.3d 908, 909; Losciuto v City
Univ. of N.Y., 80 A.D.3d 576, 576; Cupo v.
Karfunkel, 1 A.D.3d 48, 52). "While the issue of
whether a hazard is latent or open and obvious is generally
fact-specific and thus usually a jury question, a court may
determine that a risk was open and obvious as a matter of law
when the established facts compel that conclusion, and may do
so on the basis of clear and undisputed evidence"
(Tagle v Jakob, 97 N.Y.2d 165, 169 [citations
omitted]). "Whether a hazard is open and obvious cannot
be divorced from the surrounding circumstances"
(Katz v Westchester County Healthcare Corp., 82
A.D.3d 712, 713; see Atehortua v. Lewin, 90 A.D.3d
794). Similarly, the determination of whether "a
condition is not inherently dangerous . . . depends on the
totality of the specific facts of each case" (Russo
v Home Goods, Inc., 119 A.D.3d 924, 925-926; see
Salomon v. Prainito, 52 A.D.3d at 805).
contrary to the plaintiffs contention, each of the defendants
established, prima facie, that the complained-of condition
"was open and obvious, as it was not only readily
observable by those employing the reasonable use of their
senses, but was known to [the decedent] prior to the accident
and, as a matter of law, was not inherently dangerous"
(Genefar v. Great Neck Park Dist., 156 A.D.3d at
763; see Mathis v D.D. Dylan, LLC, 119 A.D.3d at
909; Capozzi v. Huhne, 14 A.D.3d 474, 474). In
opposition, the plaintiff failed to raise a triable issue of
fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320,
324; Genefar v. Great Neck Park Dist., 156 A.D.3d at
762). Accordingly, the Supreme Court properly granted the
defendants' respective motions for summary judgment
dismissing the complaint insofar as asserted against each of
light of our determination, the parties' remaining