FERNANDEZ v. EDLUND (2006)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated January 27, 2005, as granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.   Although a property owner has a duty to maintain his or her property in a reasonably safe condition (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868;  Capozzi v. Huhne, 14 A.D.3d 474, 788 N.Y.S.2d 152), there is “no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” (Jang Hee Lee v. Sung Whun Oh, 3 A.D.3d 473, 474, 771 N.Y.S.2d 134;  see Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40).   Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the uneven condition of the unpaved driveway where the accident occurred was not inherently dangerous and could have been readily observed by the reasonable use of one's senses (see Orlando v. Audax Constr. Corp., 14 A.D.3d 500, 788 N.Y.S.2d 173;  Capozzi v. Huhne, supra;  DeLaurentis v. Marx Realty & Improvement, 300 A.D.2d 343, 752 N.Y.S.2d 349;  Dawson v. Cafiero, 292 A.D.2d 488, 739 N.Y.S.2d 190).   In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Orlando v. Audax Constr. Corp., supra ).