Denise Locke, et al., appellants, v. Michael Calamit, etc., respondent.

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

Denise Locke, et al., appellants, v. Michael Calamit, etc., respondent.

2017–12087 (Index No. 10730/15)

Decided: August 21, 2019

MARK C. DILLON, J.P. LEONARD B. AUSTIN ROBERT J. MILLER COLLEEN D. DUFFY, JJ. Elovich & Adell, Long Beach, N.Y. (A. Trudy Adell, Mitchel Sommer, and Darryn Solotoff of counsel), for appellants. DeSena & Sweeney, LLP, Bohemia, N.Y. (Shawn P. O'Shaughnessy of counsel), for respondent.

Argued—January 15, 2019

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered October 27, 2017.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Denise Locke (hereinafter the plaintiff), and her husband suing derivatively, commenced this action to recover damages for personal injuries the plaintiff alleges she sustained when she tripped and fell on a door saddle in a house she and her husband rented from the defendant, who owned the house.  According to the plaintiff, she tripped and was injured as she attempted to enter the bathroom from the living room.  The bathroom floor, which consisted of white tiles with a white marble door saddle in the doorway, was two inches higher than the adjoining living room floor, which consisted of hardwood.  The defendant moved for summary judgment dismissing the complaint, contending, among other things, that the condition of the door saddle was open and obvious and not inherently dangerous.  The Supreme Court granted the motion.  The plaintiffs appeal.

An owner of land has a duty to maintain his property in a reasonably safe condition (see Kellman v. 45 Tiemann Assocs., 87 N.Y.2d 871, 872;  Gani v Avenue R Sephardic Congregation, 159 AD3d 873, 873).  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 (see Graffino v. City of New York, 162 AD3d 990, 991;  Costidis v. City of New York, 159 AD3d 871, 871).

Here, the defendant established, prima facie, that the condition of the door saddle was open and obvious, readily observable by those employing the reasonable use of their senses, known to the plaintiff prior to the accident, and not an inherently dangerous condition (see Graffino v. City of New York, 162 AD3d at 991;  Espinosa v Fairfield Props.  Group, LLC, 160 AD3d 927, 927).  In opposition, the evidence submitted by the plaintiffs, which included, inter alia, an affidavit of the plaintiffs' expert offering only a conclusory opinion (see Cardia v. Willchester Holdings, LCC, 35 AD3d 336, 337), was insufficient to raise a triable issue of fact.

The parties' remaining contentions either are without merit or have been rendered academic in light of our determination.

Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint.

DILLON, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court