CARDINALE v. AVALON WEST CHELSEA (2022)

Order, Supreme Court, New York County (David Benjamin Cohen, J.), entered December 4, 2020, which denied plaintiff's motion for summary judgment and granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court correctly dismissed this action in which plaintiff fell while stepping down from a platform constructed to cover emergency electrical cabling.  The 135–foot long, 5–foot wide and 31/212-inch wide temporary platform, which was bright yellow with anti-slip tape applied to the edge, was open and obvious and not inherently dangerous (see Baker v. Roman Catholic Church of the Holy See, 136 A.D.3d 596, 597, 26 N.Y.S.3d 48 [1st Dept. 2016];  Langer v. 116 Lexington Ave., Inc., 92 A.D.3d 597, 598–599, 939 N.Y.S.2d 370 [1st Dept. 2012], lv denied 24 N.Y.3d 907, 2014 WL 5369099 [2014]).  Plaintiff was aware of the existence of the platform, having walked on it a few days earlier (see Schulman v. Old Navy/The Gap, Inc., 45 A.D.3d 475, 476, 845 N.Y.S.2d 341 [1st Dept. 2007]).  Plaintiff described her fall as occurring when she misjudged the height of the step down and not because she was unaware of the platform's termination (see Jones v. Presbyterian Hosp. in City of N.Y., 3 A.D.3d 225, 226–227, 771 N.Y.S.2d 109 [1st Dept. 2004]).