SANDLER v. (and a third-party action).

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Supreme Court, Appellate Division, Second Department, New York.

Jack SANDLER, et al., Appellants, v. Jayanti V. PATEL, Respondent, (and a third-party action).

Decided: November 26, 2001

SONDRA MILLER, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ. Brecher Fishman Pasternack Popish Heller Rubin & Reiff, P.C., New York, N.Y. (Frank Gulino of counsel), for appellants. Marshall, Conway & Wright, P.C., New York, N.Y. (Joseph J. Andriola of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated August 3, 2000, as granted the defendant's motion for summary judgment dismissing the complaint.

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

The plaintiff Jack Sandler fell and was injured while descending stairs in a building owned by the defendant.   Sandler tripped on an alleged defect in the stairs he had previously seen while ascending them.   The plaintiffs commenced this action to recover damages for personal injuries.   The defendant successfully moved for summary judgment dismissing the complaint, and this appeal ensued.

 Initially, we note that the defendant's contention that the defective condition was open and obvious was properly considered by the Supreme Court because the plaintiffs had an opportunity to respond to it (see, Held v. Kaufman, 91 N.Y.2d 425, 430, 671 N.Y.S.2d 429, 694 N.E.2d 430).

 “Liability under * * * common-law negligence will not attach when the dangerous condition complained of was open and obvious” (Panetta v. Paramount Communications, 255 A.D.2d 568, 681 N.Y.S.2d 85), “particularly where * * * the plaintiff was actually aware of the condition” (Gonzalez v. Fastflex, Inc., 270 A.D.2d 229, 704 N.Y.S.2d 515).   Since the alleged defect upon which the injured plaintiff tripped and fell was readily observable by a reasonable use of one's senses (see, Thomas v. Price-Mart, Inc., 267 A.D.2d 374, 699 N.Y.S.2d 729;  Campanaro v. Arizona Lipnob Estates, 259 A.D.2d 581, 686 N.Y.S.2d 493) and the injured plaintiff saw and was aware of the alleged defect before the accident (see, Patel v. Corporate Park Dev. Assocs., 275 A.D.2d 313, 712 N.Y.S.2d 402;  Gonzalez v. Fastflex, Inc., supra), the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

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