Barbara Buonchristiano, E Plaintiff–Appellant, v. Fordham University, Defendant–Respondent. (2017)

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Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered June 30, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff tripped and fell on a step on a walkway on defendant's premises while crossing the campus during her lunch break.  Assuming that defendant established prima facie that the step was open and obvious and not inherently dangerous (see Philips v. Paco Lafayette LLC, 106 AD3d 631 [1st Dept 2013] ), plaintiff raised a triable issue of fact whether the condition was open and obvious by demonstrating through an expert's affidavit and photographs that the color and position of the step created optical confusion, i.e., “the illusion of a flat surface, visually obscuring ․ [the] step[ ]” (Saretsky v. 85 Kenmare Realty Corp., 85 AD3d 89, 92 n [1st Dept 2011];  and see Thornhill v. Toys “R” Us NYTEX, 183 A.D.2d 1071, 1073 [3rd Dept 1992] ).  Plaintiff's deposition testimony, that she was looking around at trees and flowers as she walked and that the step was invisible, was not inconsistent with her affidavit, in which she explained that she was also looking ahead as she walked down the path, and did not see the step (see Chafoulias v 240 E. 55th St. Tenants Corp., 141 A.D.2d 207, 211 [1st Dept 1988];  Saretsky, 85 AD3d at 92).

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CLERK