BILINSKI v. BANK OF RICHMONDVILLE (2004)

Appeal from an order of the Supreme Court (Lamont, J.), entered December 24, 2003 in Schoharie County, which granted defendant's motion for summary judgment dismissing the complaint.

In 1998, the then 77-year-old plaintiff, a regular customer of defendant, suffered personal injuries after he stepped off the sidewalk as he was moving out of the way of another customer, tripped and fell on an asphalt curb marking the intersection of a shrubbery bed and defendant's parking lot.   Plaintiff commenced this action, claiming that through its negligence, defendant created a dangerous and defective condition, thereby causing plaintiff's accident.   Following joinder of issue, Supreme Court granted defendant's motion for summary judgment dismissing the complaint.   Plaintiff appeals, arguing that questions of fact exist regarding, among other things, whether the curb created an inherently dangerous condition.   We disagree.

 Landowners have both a duty to maintain their property in a reasonably safe condition and a duty to warn of latent hazards of which they are aware (see Tagle v. Jakob, 97 N.Y.2d 165, 168-170, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001];  Soich v. Farone, 307 A.D.2d 658, 659, 763 N.Y.S.2d 168 [2003] ).   Although, as plaintiff argues, the open and obvious nature of a dangerous condition will not preclude a finding of liability against a landowner who causes foreseeable risks of harm through a failure to maintain the property in a reasonably safe condition (see MacDonald v. City of Schenectady, 308 A.D.2d 125, 126-128, 761 N.Y.S.2d 752 [2003];  Soich v. Farone, supra at 660, 763 N.Y.S.2d 168;  see generally Di Ponzio v. Riordan, 89 N.Y.2d 578, 583-584, 657 N.Y.S.2d 377, 679 N.E.2d 616 [1997] ), summary judgment is appropriate where a plaintiff fails to demonstrate the existence of any dangerous condition (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997];  Lamarre v. Rensselaer County Plaza Assoc., 303 A.D.2d 914, 914-915, 758 N.Y.S.2d 182 [2003] ).   Here, in support of its motion for summary judgment, defendant presented photographs, as well as testimony and an affidavit from its executive vice-president, establishing prima facie that the curb did not constitute a dangerous condition.   We agree with Supreme Court that the conclusory affidavit of plaintiff's expert, submitted in response, was insufficient to create a question of fact regarding whether the curb created any foreseeable hazard triggering a duty to remedy or to warn (see Mansueto v. Worster, 1 A.D.3d 412, 413, 766 N.Y.S.2d 691 [2003];  Lamarre v. Rensselaer County Plaza Assoc., supra at 914-915, 758 N.Y.S.2d 182;  O'Connor v. ISS Intl. Serv. Sys., 228 A.D.2d 898, 899, 644 N.Y.S.2d 410 [1996];  see also Phillips v. Northway Mall Assoc., 243 A.D.2d 786, 787, 662 N.Y.S.2d 856 [1997] ).   Plaintiff's remaining arguments are rendered academic by our decision or are meritless.

ORDERED that the order is affirmed, with costs.

MERCURE, J.

CARDONA, P.J., CREW III, SPAIN and CARPINELLO, JJ., concur.