PAMPILLONIA v. BURDUCEA (2009)

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated July 7, 2009, as, upon reargument, denied their motion for summary judgment dismissing the complaint.

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

The Supreme Court properly denied, upon reargument, 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” (Mooney v. Petro, Inc., 51 A.D.3d 746, 747, 858 N.Y.S.2d 689; see Pastore v. Town of Harrison, 57 A.D.3d 636, 637, 868 N.Y.S.2d 543; Ruiz v. Hart Elm Corp., 44 A.D.3d 842, 843, 844 N.Y.S.2d 80; Cupo v. Karfunkel, 1 A.D.3d 48, 51-52, 767 N.Y.S.2d 40).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law because they did not make a showing that they maintained their premises in a reasonably safe condition (see Salomon v. Prainito, 52 A.D.3d 803, 805, 861 N.Y.S.2d 718; 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). In light of this determination, we need not examine the sufficiency of the plaintiff's papers submitted in opposition (see Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350; Marshall v. Institute for Community Living, Inc., 50 A.D.3d 975, 856 N.Y.S.2d 660; Pabon v. Nouveau El. Indus., Inc., 49 A.D.3d 702, 854 N.Y.S.2d 175).