SNEED v. FULTON PARK FOUR ASSOCIATES (2021)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated September 26, 2018.  The order, insofar as appealed from, granted that branch of the motion of the defendants Fulton Park Four Associates, L.P., Vertices Holdings, LLC, and Abraham J. Hoffman, which was for summary judgment dismissing the complaint insofar as asserted against the defendants Fulton Park Four Associates, L.P., and Vertices Holdings, LLC, and, on consent, granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Abraham J. Hoffman, and granted those branches of the separate motions of the defendant Shinda Management Corp., and the defendant N.Y. Allied Asphalt Paving, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendants Fulton Park Four Associates, L.P., Vertices Holding, LLC, and Abraham J. Hoffman, which was for summary judgment dismissing the complaint insofar as asserted against the defendant Abraham J. Hoffman is dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see CPLR 5511);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.

The plaintiff allegedly tripped and fell on a chain which was suspended approximately four to five inches above the ground between two posts.  At the time of the accident, the sun was shining and there was no precipitation.  After the accident, the plaintiff commenced this action against the defendants, alleging, inter alia, that they owned the premises on which the chain was located.  The defendants Fulton Park Four Associates, L.P., Vertices Holdings, LLC, and Abraham J. Hoffman moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them, and the defendant N.Y. Allied Asphalt Paving, Inc., and the defendant Shinda Management Corp. separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them.  After the plaintiff consented to an award of summary judgment dismissing the complaint insofar as asserted against Hoffman, the Supreme Court granted the remaining defendants' motions on the grounds, inter alia, that the suspended chain was open and obvious and not inherently dangerous.

A property owner has a duty to maintain its premises in a reasonably safe condition (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868).  However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous (see Lazic v. Trump Vil. Section 3, Inc., 134 A.D.3d 776, 20 N.Y.S.3d 643;  Barone v. Risi, 128 A.D.3d 874, 9 N.Y.S.3d 620;  Varon v. New York City Dept. of Educ., 123 A.D.3d 810, 811, 998 N.Y.S.2d 433;  Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40).  Here, it was established, prima facie, that the presence of the chain was open and obvious and not inherently dangerous (see Callen v. Comsewogue School Dist., 95 A.D.3d 814, 942 N.Y.S.2d 818;  Plis v. North Bay Cadillac, 5 A.D.3d 578, 773 N.Y.S.2d 451).  In opposition, the plaintiff failed to raise a triable issue of fact.

We further note that the plaintiff does not challenge the alternative grounds cited by the Supreme Court for awarding summary judgment dismissing the complaint insofar as asserted against Fulton Park Four Associates, L.P., and N.Y. Allied Asphalt Paving, Inc.

Accordingly, the Supreme Court properly granted that branch of the motion of Fulton Park Four Associates, L.P., Vertices Holdings, LLC, and Hoffman, which was for summary judgment dismissing the complaint insofar as asserted against Fulton Park Four Associates, L.P., and Vertices Holdings, LLC, and, those branches of the separate motions of Shinda Management Corp., and N.Y. Allied Asphalt Paving, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

DILLON, J.P., HINDS–RADIX, DUFFY and IANNACCI, JJ., concur.