GROOM v. VILLAGE OF SEA CLIFF

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

Jackson R. GROOM, etc., appellant, v. VILLAGE OF SEA CLIFF, et al., respondents.

Decided: April 29, 2008

WILLIAM F. MASTRO, J.P., DAVID S. RITTER, EDWARD D. CARNI, and RANDALL T. ENG, JJ. Spence & Davis, LLP, Garden City, N.Y. (Robert J. Spence and John Lehr of counsel), for appellant. Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea M. Alonzo of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by the brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), entered February 8, 2007, as granted the defendants' motion for summary judgment dismissing the complaint.

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

 The plaintiff's minor child climbed on to a moss-covered portion of a concrete groin at the Sea Cliff Beach and fell.  “A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property” (Kurshals v. Connetquot Cent. School Dist., 227 A.D.2d 593, 593, 643 N.Y.S.2d 622;  see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868;  Doyle v. State of New York, 271 A.D.2d 394, 705 N.Y.S.2d 389). However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it (see Progressive Northeastern Ins. Co. v. Town of Oyster Bay, 40 A.D.3d 612, 835 N.Y.S.2d 406;   Stanton v. Town of Oyster Bay, 2 A.D.3d 835, 769 N.Y.S.2d 383;  Nardi v. Crowley Marine Assoc., 292 A.D.2d 577, 741 N.Y.S.2d 246;  see also Mazzola v. Mazzola, 16 A.D.3d 629, 793 N.Y.S.2d 59;  DeLaurentis v. Marx Realty & Improvement, 300 A.D.2d 343, 752 N.Y.S.2d 349;  Moriello v. Stormville Airport Antique Show & Flea Mkt., 271 A.D.2d 664, 706 N.Y.S.2d 463).   Here, the defendants established their entitlement to summary judgment by demonstrating that the allegedly slippery condition of the concrete groin was open and obvious and inherent or incidental to the nature of the property and could be reasonably anticipated by those using it (see Progressive Northeastern Ins. Co. v. Town of Oyster Bay, 40 A.D.3d 612, 835 N.Y.S.2d 406;  Stanton v. Town of Oyster Bay, 2 A.D.3d 835, 769 N.Y.S.2d 383;  Nardi v. Crowley Marine Assoc., 292 A.D.2d 577, 741 N.Y.S.2d 246).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.   Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

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