JANG HEE LEE v. SUNG WHUN OH (2004)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated May 20, 2002, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 A landowner “must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868;  see Peralta v. Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170).   The scope of the duty varies with the foreseeability of the potential harm (see Tagle v. Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107).   There is, however, no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous (see Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40).

The approximately three-meter-wide by one-meter-deep empty, artificial cement pond upon which the plaintiff Jang Hee Lee tripped and fell was not, as a matter of law, an inherently dangerous condition and was readily observable by the reasonable use of one's senses (see Gibbons v. Lido & Point Lookout Fire Dist., 293 A.D.2d 646, 647, 740 N.Y.S.2d 440;  Simmons v. Sam's E., 293 A.D.2d 596, 597, 740 N.Y.S.2d 218;  Plessias v. Scalia Home For Funerals, 271 A.D.2d 423, 706 N.Y.S.2d 131).   The accident occurred at approximately 1:00 P.M. on a clear day when the cement pond was plainly visible.   Jang Hee Lee previously visited the premises on approximately 15 prior occasions and therefore was aware of the pond's existence and precise location (see Tagle v. Jakob, supra;  Czorniewy v. Mosera, 298 A.D.2d 352, 751 N.Y.S.2d 375;  Germain v. Hegedus, 289 A.D.2d 443, 735 N.Y.S.2d 426).

Moreover, even if the report of the plaintiffs' expert was in admissible form (see Washington v. City of Yonkers, 293 A.D.2d 741, 742, 742 N.Y.S.2d 316), the provisions of the Administrative Code of City of New York upon which he relied, i.e., Administrative Code of City of New York §§ 27-127 and 27-128, are nonspecific and reflect only the general duty to maintain premises in a safe condition (see Ahmad v. City of New York, 298 A.D.2d 473, 474, 748 N.Y.S.2d 777;  Dixon v. Nur-Hom Realty Corp., 254 A.D.2d 66, 67, 678 N.Y.S.2d 613).   The appellants therefore did not breach a duty to the plaintiffs, and in opposition to the motion the plaintiffs failed to raise a triable issue of fact.   Accordingly, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint.