SCHULTZE v. AKI ACQUISITION CORP (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Cassandra A. Johnson, J.), dated May 16, 2024.  The order, insofar as appealed from, granted that branch of the motion of the defendant AKI Acquisition Corp. which was for summary judgment dismissing the amended complaint insofar as asserted against it.

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

The plaintiff Denise Schultze (hereinafter the injured plaintiff) allegedly was injured when she slipped and fell on leaves on the front steps of her workplace.  The injured plaintiff, and her husband suing derivatively, thereafter commenced this action, inter alia, to recover damages for personal injuries against AKI Acquisition Corp. (hereinafter the defendant), which owned the premises, and another.  After discovery, the defendant moved, among other things, for summary judgment dismissing the amended complaint insofar as asserted against it.  In an order dated May 16, 2024, the Supreme Court, inter alia, granted that branch of the defendant's motion.  The plaintiffs appeal.

A property owner has a duty to maintain its property in a reasonably safe condition (see Torres v. La Borinquena HDFC, Inc., 229 A.D.3d 830, 831, 216 N.Y.S.3d 230, citing Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255).  However, there is no duty to protect against an open and obvious condition that, as a matter of law, is not inherently dangerous (see F.S. v. City of New York, 242 A.D.3d 1135, 243 N.Y.S.3d 153;  Villanueva v. Mennonite United Revival Hous. Dev. Fund Corp., 241 A.D.3d 1500, 242 N.Y.S.3d 696).  A defendant can establish prima facie entitlement to judgment as a matter of law by showing that the alleged condition was open and obvious and not inherently dangerous (see Torres v. La Borinquena HDFC, Inc, 229 A.D.3d at 831, 216 N.Y.S.3d 230).  “ ‘[W]hether a condition is not inherently dangerous ․ depends on the totality of the specific facts of each case’ ” (id. [internal quotation marks omitted], quoting Brett v. AJ 1086 Assoc., LLC, 189 A.D.3d 1153, 1154, 138 N.Y.S.3d 546).

Here, the defendant made a prima facie showing that the alleged condition was open and obvious and not inherently dangerous through the submission of a transcript of the injured plaintiff's deposition testimony, as well as photographs of the steps where the plaintiff fell (see Humphrey v. Starrett City, Inc., 164 A.D.3d 771, 79 N.Y.S.3d 558;  Scalice v. Braisted, 116 A.D.3d 755, 982 N.Y.S.2d 921;  cf.  Bissett v. 30 Merrick Plaza, LLC, 156 A.D.3d 751, 67 N.Y.S.3d 268).

In opposition, the plaintiffs failed to raise a triable issue of fact, since, among other things, the witness statements they submitted were from individuals who did not observe the injured plaintiff fall, and the expert affidavit of a facilities maintenance consultant was conclusory and speculative (see Giovanelli v. MinRod Realty Corp., 237 A.D.3d 1165, 234 N.Y.S.3d 196).

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it.

The parties' remaining contention need not be reached in light of our determination.

DILLON, J.P., DOWLING, TAYLOR and MCCORMACK, JJ., concur.