KEAN CHONG v. MBA VERNON BOULEVARD LLC (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Maurice E. Muir, J.), dated June 27, 2023.  The order denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries, alleging that she tripped and fell while attempting to step onto a defective curb in a parking lot.  The incident occurred outside a store operated by the defendant Costco Wholesale Corporation (hereinafter Costco).  The store and parking lot, including the allegedly defective curb, were located on property owned by the defendant MBA–Vernon Boulevard, LLC (hereinafter MBA), and leased by Costco (hereinafter together the defendants).  The defendants moved for summary judgment dismissing the complaint.  In an order dated June 27, 2023, the Supreme Court denied the motion.  The defendants appeal.

“ ‘While a possessor of real property has a duty to maintain that property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous’ ” (Butler v. NYU Winthrop Hosp., 225 A.D.3d 658, 659, 206 N.Y.S.3d 707, quoting Williams v. E & R Jamaica Food Corp., 202 A.D.3d 1028, 1029, 159 N.Y.S.3d 732).  “The issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually a question of fact for a jury” (Clayton v. Marcy Supermarket & Deli Corp., 191 A.D.3d 842, 843, 138 N.Y.S.3d 907).

Here, the defendants failed to establish, prima facie, that the allegedly defective condition of the curb where the accident occurred was open and obvious and not inherently dangerous (see Brady v. 2247 Utica Ave. Realty Corp., 210 A.D.3d 621, 622–623, 177 N.Y.S.3d 627;  Kastin v. Ohr Moshe Torah Inst., Inc., 170 A.D.3d 697, 699, 95 N.Y.S.3d 292).  Furthermore, contrary to the defendants’ contention, they failed to establish, prima facie, that MBA was an out-of-possession landlord that was not contractually obligated under the lease to repair the curb where the plaintiff's accident allegedly occurred, as the defendants failed to submit a copy of the lease between MBA and Costco (see Amparo v. Christopher One Corp., 225 A.D.3d 652, 654, 207 N.Y.S.3d 133;  Cicio v. Kingswood Props., LLC, 224 A.D.3d 656, 657, 205 N.Y.S.3d 164).

In light of the defendants’ failure to meet their prima facie burden, it is not necessary to consider the sufficiency of the plaintiff's 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).

IANNACCI, J.P., CHAMBERS, WAN and LANDICINO, JJ., concur.