BOWEN v. WESTCHESTER COUNTY CORRECTIONAL FACILITY (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Damaris E. Torrent, J.), dated December 21, 2023.  The order granted the defendant's motion for summary judgment dismissing the amended complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the amended complaint is denied.

The plaintiff commenced this action against the defendant to recover damages for personal injuries he allegedly sustained when he slipped and fell due to the presence of a pile of wet garbage on the floor of the defendant's premises.  The defendant moved for summary judgment dismissing the amended complaint.  In an order dated December 21, 2023, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

“A property owner has a duty to maintain its premises in a reasonably safe condition” (Parrinello v. Independence Plaza SC, LLC, 189 A.D.3d 1441, 1442, 137 N.Y.S.3d 392), which “may also include the duty to warn of a dangerous condition” (Darginsky v. Food Parade, Inc., 217 A.D.3d 748, 748, 191 N.Y.S.3d 133 [internal quotation marks omitted]).  “However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” (Ferruzzi v. Village of Saltaire, 219 A.D.3d 1310, 1311, 195 N.Y.S.3d 779;  see Brett v. AJ 1086 Assoc., LLC, 189 A.D.3d 1153, 1154, 138 N.Y.S.3d 546).

“In moving for summary judgment in a slip-and-fall case, the defendant has the burden of establishing, prima facie, that it neither created the hazardous condition which caused the plaintiff's injury nor had actual or constructive notice of such condition” (Parrinello v. Independence Plaza SC, LLC, 189 A.D.3d at 1442, 137 N.Y.S.3d 392) or, alternatively, that the alleged condition “was both open and obvious, and not inherently dangerous” (Martinez v. Fairfield Hills E., LLC, 213 A.D.3d 837, 837, 183 N.Y.S.3d 536;  see Johnson v. Acumen Capital Partners, LLC, 213 A.D.3d 746, 747, 184 N.Y.S.3d 354).  “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 defendant failed to establish, prima facie, that it neither created nor had actual or constructive notice of the condition that allegedly caused the plaintiff to fall (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Parrinello v. Independence Plaza SC, LLC, 189 A.D.3d 1441, 137 N.Y.S.3d 392) or that the condition was open and obvious and not inherently dangerous (see Naftaliyeva v. Shoprite of Ave. I, 233 A.D.3d 793, 223 N.Y.S.3d 243;  Rosenman v. Siwiec, 196 A.D.3d 523, 525, 147 N.Y.S.3d 426).  The defendant also failed to establish, prima facie, that the plaintiff was the sole proximate cause of his injuries (see Reyes v. S. Nicolia & Sons Realty Corp., 212 A.D.3d 851, 852, 183 N.Y.S.3d 471;  Davidoff v. First Dev. Corp., 148 A.D.3d 773, 775, 48 N.Y.S.3d 755).  Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the amended complaint, we need not 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).

The defendant's remaining contention is improperly raised for the first time on appeal.

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the amended complaint.

MILLER, J.P., FORD, LOVE and HOM, JJ., concur.