MARTINEZ v. FAIRFIELD HILLS EAST LLC (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Linda J. Kevins, J.), dated October 21, 2021.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On May 31, 2018, the plaintiff allegedly was injured when she fell while descending an exterior step of the defendants’ premises.  Thereafter, the plaintiff commenced this action to recover damages for personal injuries.  The defendants subsequently moved for summary judgment dismissing the complaint, contending, inter alia, that the step was open and obvious and not inherently dangerous.  The Supreme Court granted the defendants’ motion.  The plaintiff appeals.

“An owner of land has a duty to maintain his [or her] property in a reasonably safe condition” (Locke v. Calamit, 175 A.D.3d 560, 561, 104 N.Y.S.3d 908;  see Kellman v. 45 Tiemann Assoc., Inc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255).  “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” (Costidis v. City of New York, 159 A.D.3d 871, 871, 70 N.Y.S.3d 74;  see Graffino v. City of New York, 162 A.D.3d 990, 991, 80 N.Y.S.3d 444;  Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40).  “A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” (Williams v. E & R Jamaica Food Corp., 202 A.D.3d 1028, 1029, 159 N.Y.S.3d 732 [internal quotation marks omitted]).  “The determination of [w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” (Brett v. AJ 1086 Assoc., LLC, 189 A.D.3d 1153, 1154, 138 N.Y.S.3d 546 [internal quotation marks omitted]).

Here, the defendants established, prima facie, that the step on which the plaintiff allegedly fell was both open and obvious, and not inherently dangerous (see Masker v. Smith, 188 A.D.3d 867, 868, 135 N.Y.S.3d 135;  Fishelson v. Kramer Props., LLC, 133 A.D.3d 706, 707–708, 19 N.Y.S.3d 580;  Losciuto v. City Univ. of N.Y., 80 A.D.3d 576, 576–577, 914 N.Y.S.2d 296).  At her deposition, the plaintiff testified that, moments before the alleged incident, she had ascended the step without incident.  Further, according to the plaintiff, the alleged incident took place on a sunny day and there was nothing obstructing her view of the step.  In opposition, the plaintiff failed to raise a triable issue of fact (see generally Plowden v. Stevens Partners, LLC, 45 A.D.3d 659, 660, 846 N.Y.S.2d 238;  Amster v. Kromer, 150 A.D.3d 804, 804–805, 54 N.Y.S.3d 103).  Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.

The plaintiff's remaining contention is without merit.

DILLON, J.P., RIVERA, MALTESE and VOUTSINAS, JJ., concur.