HOGAN v. BAKER (2006)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated April 8, 2003, which denied her motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff's decedent was walking on the defendant's unpaved driveway when one of the rocks in the driveway caused her to fall.   The defendant allegedly placed rocks in the driveway several years before the accident, to serve as the base of the driveway before it was paved, but never paved the driveway.

The defendant failed to establish her prima facie entitlement to summary judgment since she did not show that she met her duty as a property owner to maintain her premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868;  Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923, 767 N.Y.S.2d 44).   Additionally, the alleged open and obvious nature of the condition only raised a triable issue of fact as to the comparative fault of the plaintiff's decedent (see Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40).