CERRATO v. JACOBS (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Salvatore Modica, J.), entered March 2, 2017.  The order granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff police officer commenced this action in September 2014, alleging that he was injured on October 25, 2012, when he stepped in a dirt area in the front yard of a home owned by the defendant while executing a felony arrest warrant of another person.  The plaintiff asserted two causes of action against the defendant, to recover damages for personal injuries under common-law negligence as codified by General Obligations Law § 11–106, and under General Municipal Law § 205–e, respectively.  Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint and the plaintiff cross-moved for summary judgment on the issue of liability.  The Supreme Court granted the defendant's motion and denied the plaintiff's cross motion.  The plaintiff appeals.  We affirm.

Although the defendant, as the landowner, had a duty to exercise reasonable care in maintaining his property in a safe condition (see Commender v. Strathmore Ct. Home Owners Assn., 151 A.D.3d 1014, 1015, 58 N.Y.S.3d 108;  Mossberg v. Crow's Nest Mar. of Oceanside, 129 A.D.3d 683, 683, 10 N.Y.S.3d 319), the defendant had no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous or where the allegedly dangerous condition can be recognized simply as a matter of common sense (see Schiavone v. Bayside Fuel Oil Depot Corp., 94 A.D.3d 970, 971, 942 N.Y.S.2d 585;  Rivas–Chirino v. Wildlife Conservation Socy., 64 A.D.3d 556, 557, 883 N.Y.S.2d 552), or where the condition on the property is inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it (see Torres v. State of New York, 18 A.D.3d 739, 739, 795 N.Y.S.2d 710).

Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action asserted pursuant to General Obligations Law § 11–106 by demonstrating that the dirt area was an open and obvious condition which was inherent or incidental to the nature of the property and which was recognizable simply as a matter of common sense (see Miano v. Rite Aid Hdqtrs. Corp., 160 A.D.3d 713, 714, 71 N.Y.S.3d 365;  Schiavone v. Bayside Fuel Oil Depot Corp., 94 A.D.3d at 971, 942 N.Y.S.2d 585).  In opposition, the plaintiff failed to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The defendant also demonstrated his prima facie entitlement to judgment as a matter of law dismissing the General Municipal Law § 205–e cause of action.  “A police officer seeking to recover under General Municipal Law § 205–e must identify a statute or ordinance with which the defendant failed to comply and must, in addition, set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused harm to him or her” (Quinto v. New York City Tr. Auth., 7 A.D.3d 689, 689–690, 776 N.Y.S.2d 835;  see Williams v. City of New York, 2 N.Y.3d 352, 363–364, 779 N.Y.S.2d 449, 811 N.E.2d 1103).  The police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties (see Galapo v. City of New York, 95 N.Y.2d 568, 574, 721 N.Y.S.2d 857, 744 N.E.2d 685).  Here, the defendant demonstrated, prima facie, that he was not in violation of any of the regulations alleged by the plaintiff.  In opposition, the plaintiff failed to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint and denying the plaintiff's cross motion for summary judgment on the issue of liability.

SCHEINKMAN, P.J., CHAMBERS, AUSTIN and DUFFY, JJ., concur.