MORIELLO v. STORMVILLE AIRPORT ANTIQUE SHOW FLEA MARKET INC

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

Camille MORIELLO, appellant, v. STORMVILLE AIRPORT ANTIQUE SHOW & FLEA MARKET, INC., et al., respondents.

Decided: April 24, 2000

GLORIA GOLDSTEIN, J.P., ANITA R. FLORIO, SANDRA J. FEUERSTEIN and ROBERT W. SCHMIDT, JJ. Charles Palella, P.C., New York, N.Y., for appellant. Clausen Miller, P.C., New York, N.Y. (Edward M. Kay, Tyler Jay Lory, Andrew M. Laskin, and Melissa A. Murphy-Petros of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Murphy, J.), dated February 11, 1999, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly sustained injuries when she tripped on a flat rock while walking on an unpaved roadway leading from a parking field to an antique show and flea market.   She commenced this action against the owner of the parking field and the entity which ran the flea market, contending, inter alia, that the defendants were negligent in failing to inspect the roadway and correct this condition.   The defendants' motion for summary judgment was granted, and this appeal ensued.

 We agree with the Supreme Court that tripping on a rock was not the type of risk that the defendants were obligated to prevent.   While landowners have a duty to prevent the occurrence of foreseeable injuries on their premises, they are not obligated to warn against a condition on the land that could be readily observed by the use of one's senses (see, Binensztok v. Marshall Stores, 228 A.D.2d 534, 644 N.Y.S.2d 333;  Cimino v. Town of Hempstead, 110 A.D.2d 805, 806, 488 N.Y.S.2d 68;  see generally, Preston v. State of New York, 59 N.Y.2d 997, 466 N.Y.S.2d 952, 453 N.E.2d 1241;  Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).   Furthermore, the flat rock over which plaintiff fell was inherent to the nature of an unpaved roadway, and therefore should have been anticipated by the plaintiff when traversing this area.   Thus, under the circumstances, the plaintiff was not unnecessarily or unreasonably exposed to danger (see, Egeth v. County of Westchester, 206 A.D.2d 502, 614 N.Y.S.2d 763;  Csukardi v. Bishop McDonnell Camp, 148 A.D.2d 657, 539 N.Y.S.2d 408).

 The Supreme Court properly granted the defendants' motion notwithstanding that discovery was incomplete, since there was only hope and speculation as to what additional discovery would uncover (see, Mazzaferro v. Barterama Corp., 218 A.D.2d 643, 630 N.Y.S.2d 346).

MEMORANDUM BY THE COURT.

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