Supreme Court, Appellate Division, Second Department, New York.
Carmen Castro FLORES, et al., appellants, v. HARVEST MOON FARM & ORCHARD, respondent.
Decided: June 01, 2022
COLLEEN D. DUFFY, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
Martino & Weiss, Rye Brook, NY (Douglas J. Martino of counsel), for appellants. Erlich & Gayner, LLP, New York, NY (Charles J. Gayner of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated August 26, 2020. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Carmen Castro Flores (hereinafter the injured plaintiff) allegedly was injured when she slipped and fell on hay, straw, or dried, cut grass, while walking on the grass in an apple orchard owned by the defendant. The injured plaintiff, and her husband suing derivatively, commenced this action, inter alia, to recover damages for personal injuries. After discovery, the defendant moved for summary judgment dismissing the complaint. In the order appealed from, dated August 26, 2020, the Supreme Court granted the defendant's motion, and the plaintiffs appeal.
An owner of land has a duty to maintain his or her property in a reasonably safe condition (see Locke v. Calamit, 175 A.D.3d 560, 561, 104 N.Y.S.3d 908). “However, there is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one's senses” (Luttenberger v. McManus–Lorey Funeral Home, Ltd., 200 A.D.3d 671, 671, 154 N.Y.S.3d 834 [internal quotation marks omitted]; Locke v. Calamit, 175 A.D.3d at 561, 104 N.Y.S.3d 908). Furthermore, a landowner “will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” (Torres v. State of New York, 18 A.D.3d 739, 739, 795 N.Y.S.2d 710; see Miano v. Rite Aid Hdqtrs. Corp., 160 A.D.3d 713, 71 N.Y.S.3d 365).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the condition of the grass was open and obvious and not inherently dangerous, as well as incidental to the nature of an apple orchard and reasonably to be anticipated by those using it (see Grosskopf v. Beechwood Org., 166 A.D.3d 860, 88 N.Y.S.3d 561; Ibragimov v. Town of N. Hempstead, 164 A.D.3d 1426, 1427, 84 N.Y.S.3d 527; Miano v. Rite Aid Hdqtrs. Corp., 160 A.D.3d at 713–714, 71 N.Y.S.3d 365; Zegarelli v. Dundon, 102 A.D.3d 958, 958 N.Y.S.2d 302). In opposition, the plaintiffs failed to raise a triable issue of fact.
Contrary to the plaintiffs’ further contention, “[t]he fact that [the] defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572; see Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
DUFFY, J.P., BRATHWAITE NELSON, IANNACCI and WOOTEN, JJ., concur.
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