MOZLIN v. VILLAGE TOWN OF MOUNT KISCO (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated March 11, 2022.  The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Shamrock Shows, Inc.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Shamrock Shows, Inc., is denied.

The plaintiff Christine Mozlin (hereinafter the injured plaintiff) allegedly was injured when she tripped and fell over cables placed across a parking lot that was the site of a carnival event she was attending.  The carnival was run by the defendant Shamrock Shows, Inc. (hereinafter Shamrock).  The injured plaintiff, and her husband suing derivatively, commenced this action to, inter alia, recover damages for personal injuries.  The defendants Shamrock, the Village/Town of Mount Kisco, and the Mount Kisco Chamber of Commerce, Inc. moved for summary judgment dismissing the complaint.  In relevant part, the defendants contended that Shamrock was entitled to summary judgment dismissing the complaint insofar as asserted against it on the ground that the condition of the cables was open and obvious and not inherently dangerous.  The Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Shamrock.  The plaintiffs appeal.

The defendants failed to establish, prima facie, that the cables were not inherently dangerous (see Franzo v. Town of Hempstead, 194 A.D.3d 698, 698, 143 N.Y.S.3d 601;  Crosby v. Southport, LLC, 169 A.D.3d 637, 640, 94 N.Y.S.3d 109;  Frank v. JS Hempstead Realty, LLC, 136 A.D.3d 742, 743–744, 24 N.Y.S.3d 714).  In light of the defendants' failure to meet their prima facie burden, it is not necessary to consider the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Shamrock.

CONNOLLY, J.P., CHAMBERS, WARHIT and VENTURA, JJ., concur.