PRESTON v. CASTLE POINTE LLC SL II LLC HCRI HCRI LLC HCRI LLC LLC (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this premises liability action seeking damages for, inter alia, the wrongful death and conscious pain and suffering of his father, Lawrence A. Preston (decedent), a 96–year–old man who allegedly drowned in a retention pond on property owned, leased, or operated by defendants-respondents (defendants) and containing the senior citizen independent living facility in which decedent resided.  Plaintiff appeals from an order granting defendants' motion for summary judgment dismissing the amended complaint against them.  We affirm.

In support of their motion, defendants established that decedent's body was found in the pond a day after he was last seen leaving the apartment building in which he resided.  The record contains no information concerning how he came to be there.  The Monroe County Medical Examiner concluded that decedent collapsed into the pond and died of drowning.  In opposition to the motion, however, plaintiff contended, inter alia, that decedent may have slipped on the pond's sloping bank and slid into the water.

“ ‘A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property’ ․ However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” (Groom v. Village of Sea Cliff, 50 A.D.3d 1094, 1094, 857 N.Y.S.2d 646 [2d Dept. 2008];  see Commender v. Strathmore Ct. Home Owners Assn., 151 A.D.3d 1014, 1015, 58 N.Y.S.3d 108 [2d Dept. 2017] ).

Here, defendants met their initial burden on the motion by establishing that the pond, including its sloping bank, was an open and obvious condition inherent or incidental to the nature of the property and that it was known to decedent prior to the accident (see Mossberg v. Crow's Nest Mar. of Oceanside, 129 A.D.3d 683, 683–684, 10 N.Y.S.3d 319 [2d Dept. 2015];  Progressive Northeastern Ins. Co. v. Town of Oyster Bay, 40 A.D.3d 612, 613, 835 N.Y.S.2d 406 [2d Dept. 2007];  see also Barnaby v. Rice, 75 A.D.2d 179, 182, 428 N.Y.S.2d 973 [3d Dept. 1980], affd 53 N.Y.2d 720, 439 N.Y.S.2d 354, 421 N.E.2d 846 [1981] ).  “A slippery condition on a [pond's bank] is necessarily incidental to its nature and location near a body of water” (Mossberg, 129 A.D.3d at 684, 10 N.Y.S.3d 319;  see Groom, 50 A.D.3d at 1094–1095, 857 N.Y.S.2d 646;  see also Pomianowski v. City of New York, 67 A.D.3d 761, 762, 888 N.Y.S.2d 608 [2d Dept. 2009] ).

After defendants met their initial burden on the motion, “the burden then shifted to [plaintiff] ‘to produce evidentiary proof in admissible form sufficient to raise a material issue of fact to avoid summary judgment’ ” (Primax Props., LLC v. Monument Agency, Inc., 158 A.D.3d 1336, 1337, 71 N.Y.S.3d 302 [4th Dept. 2018];  see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).  We agree with defendants that he failed to do so.  We note in particular that the engineering expert's affidavit that plaintiff submitted fails to indicate that it was based on any studies, regulations, codes, or statutes, “nor is the expert's conclusion that the [retention pond] was defective and unsafe ․ supported by foundational facts, such as a deviation from industry standards or statistics showing the frequency of injuries caused by” the lack of safety measures proposed by the expert (Kiersznowski v. Gregory B. Shankman, M.D., P.C., 67 A.D.3d 1366, 1367, 889 N.Y.S.2d 781 [4th Dept. 2009] [internal quotation marks omitted];  see Baehre v. Sagamore Resort Hotel, Inc., 4 A.D.3d 810, 811, 771 N.Y.S.2d 434 [4th Dept. 2004];  see generally Romano v. Stanley, 90 N.Y.2d 444, 451, 661 N.Y.S.2d 589, 684 N.E.2d 19 [1997] ).  Plaintiff failed to introduce evidence in admissible form in support of his remaining contention and thus failed to raise a triable issue of fact with respect to that contention (see generally Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).