MOONEY v. PETRO INC (2008)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated July 11, 2007, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.   In support of their motion, the defendants primarily argued that the allegedly dangerous condition which caused the subject accident was open and obvious.   Although there is no duty to warn of an open and obvious condition, this principle does not absolve a landowner of the duty to maintain the property in a reasonably safe condition (see Cupo v. Karfunkel, 1 A.D.3d 48, 51-52, 767 N.Y.S.2d 40;  DiVietro v. Gould Palisades, Corp., 4 A.D.3d 324, 771 N.Y.S.2d 527).   Here, the defendants failed to establish their entitlement to judgment as a matter of law because they did not make a prima facie showing that they maintained their premises in a reasonably safe condition (see Fabish v. Garden Bay Manor Condominium, 44 A.D.3d 820, 843 N.Y.S.2d 460;  Hogan v. Baker, 29 A.D.3d 740, 815 N.Y.S.2d 245;  Femenella v. Pellegrini Vineyards, LLC, 16 A.D.3d 546, 792 N.Y.S.2d 122).   Furthermore, contrary to their contentions on appeal, the defendants also failed to demonstrate as a matter of law that the accident was unforeseeable (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666;  Gray v. Amerada Hess Corp., 48 A.D.3d 747, 853 N.Y.S.2d 157;  Adams v. Lemberg Enters., Inc., 44 A.D.3d 694, 843 N.Y.S.2d 432;  Culotta v. Smithtown Cent. School Dist., 37 A.D.3d 755, 831 N.Y.S.2d 238), or that the plaintiff's alleged negligence was the sole proximate cause of the accident (see Pabon v. Nouveau El. Indus., Inc., 49 A.D.3d 702, 854 N.Y.S.2d 175;  Gray v. Amerada Hess Corp., 48 A.D.3d 747, 853 N.Y.S.2d 157).   In light of this determination, we need not examine the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Pabon v. Nouveau El. Indus., Inc., 49 A.D.3d 702, 854 N.Y.S.2d 175;  Fabish v. Garden Bay Manor Condominium, 44 A.D.3d 820, 843 N.Y.S.2d 460).