MAURIELLO v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY (2004)

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered November 26, 2002, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

 After picking up his suitcase at the baggage claim area at LaGuardia Airport on a Saturday afternoon, plaintiff tripped over a metal track about 10 inches high that was installed in the floor.   The track is designed to hold luggage carts for rental by passengers and was under the operation and control of defendant Smarte Carte Corporation under contract with defendant Port Authority of New York and New Jersey.   Following discovery, Supreme Court granted defendants' motion to dismiss the complaint on the ground that the alleged hazardous condition was open and apparent.

 Whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances.   A condition that is ordinarily apparent to a person making reasonable use of his senses (Tarricone v. State of New York, 175 A.D.2d 308, 309, 571 N.Y.S.2d 845, lv. denied 78 N.Y.2d 862, 576 N.Y.S.2d 220, 582 N.E.2d 603) may be rendered a trap for the unwary where the condition is obscured by crowds or the plaintiff's attention is otherwise distracted (see Sanchez v. Toys “R” Us, 303 A.D.2d 165, 754 N.Y.S.2d 884 [fall over low 3-foot by 4-foot rack two days before Christmas];  Thornhill v. Toys “R” Us NYTEX, 183 A.D.2d 1071, 583 N.Y.S.2d 644 [raised platform obscured by clothing rack and cart];  De Conno v. Golub Corp., 255 A.D.2d 734, 680 N.Y.S.2d 727 [orange marker cone appearing suddenly to patron rounding corner] ).   Plaintiff contends that, at the time he fell, there were no carts in the track that would have alerted a passenger to the presence of the track beneath.   His view was further obscured by crowds of people in the terminal.   Under these circumstances, defendants have not demonstrated that an obstacle measuring a mere 10 inches in height was open and obvious, nor have they resolved the distinct issue of whether they maintained the subject premises in reasonably safe condition (see Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107;  Centeno v. Regine's Originals, 5 A.D.3d 210, 773 N.Y.S.2d 62;  Westbrook v. WR Activities-Cabrera Markets, 5 A.D.3d 69, 773 N.Y.S.2d 38, 41).