DONOHUE v. SEVEN SEVENTEEN HB BUFFALO CORPORATION (2002)

 Plaintiff sustained injuries when he tripped and fell over a roll of fencing that was lying across the sidewalk on the grounds of the Adam's Mark Hotel-Buffalo.   Supreme Court properly denied the motion of Seven Seventeen HB Buffalo Corporation, d/b/a Adam's Mark Hotel-Buffalo, H.B.E. Corporation and Erie County Industrial Development Agency (defendants) seeking summary judgment dismissing the complaint against them.   Defendants failed to meet their initial burden of establishing as a matter of law that they were not negligent or that their negligence was not a proximate cause of plaintiff's injuries.   Defendants cannot meet their initial burden “by noting gaps in [their] opponent's proof” (Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980, 623 N.Y.S.2d 457;  see, Dodge v. City of Hornell Indus. Dev. Agency, 286 A.D.2d 902, 903, 730 N.Y.S.2d 902).   The fact that the roll of fencing was “readily observable goes to the issue of comparative negligence and does not negate the duty of defendants to keep their premises reasonably safe” (Crawford v. Marcello, 247 A.D.2d 907, 668 N.Y.S.2d 852;  see also, Patterson v. Troyer Potato Prods., 273 A.D.2d 865, 709 N.Y.S.2d 731;  Williams v. Chenango County Agric.   Socy., 272 A.D.2d 906, 907, 707 N.Y.S.2d 578;  Vereerstraeten v. Cook, 266 A.D.2d 901, 697 N.Y.S.2d 421).   Defendants' reliance upon our decision in Duclos v. County of Monroe, 258 A.D.2d 925, 685 N.Y.S.2d 549 is misplaced;  that case involved a natural condition on the property of defendant landowners rather than a man-made hazard that may be eliminated through the exercise of reasonable care.

 Contrary to defendants' further contention, the issue whether plaintiff assumed the risk of his injuries is one of fact for the jury (see, Orlin v. Colgate Scaffolding Corp., 248 A.D.2d 114, 115-116, 669 N.Y.S.2d 548).   In addition, plaintiff's conduct in attempting to step over the roll of fencing was not unforeseeable as a matter of law, and thus the issue of proximate cause also is one of fact for the jury (see, Orlin v Colgate Scaffolding Corp., supra, at 115, 669 N.Y.S.2d 548).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: