Rider v. Manhattan Monster, Inc.

208 A.D.3d 807

174 N.Y.S.3d 423

Kenneth RIDER, respondent,

v.MANHATTAN MONSTER, INC., etc., appellant.

2020–09123

Index No. 713399/16

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

Argued—May 3, 2022

August 24, 2022

Farber Brocks & Zane, LLP, Garden City, NY (Lester Chanin of counsel), for appellant.

Peter M. Zirbes & Associates, P.C., Forest Hills, NY, for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered November 24, 2020. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

On February 19, 2016, the plaintiff was a patron at a bar owned by the defendant when he allegedly tripped over the leg of a large decorative throne. The plaintiff commenced this action against the defendant to recover damages for personal injuries, alleging that the defendant, among other things, negligently permitted a dangerous condition within the premises. After discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the defendant's motion, concluding that the plaintiff raised triable issues of fact, precluding an award of summary judgment. The defendant appeals.

"An owner of property or tenant in possession of real property has a duty to maintain the property in a reasonably safe condition" ( Lorenzo v. Garley, 190 A.D.3d 847, 848, 136 N.Y.S.3d 771 [internal quotation marks omitted]; see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Costidis v. City of New York, 159 A.D.3d 871, 70 N.Y.S.3d 74 ). " ‘[A] defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it’ " ( Leem v. 152–24 N., LLC, 201 A.D.3d 918, 919, 157 N.Y.S.3d 749, quoting Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ; see Madden v. 3240 Henry Hudson Parkway, LLC, 192 A.D.3d 1095, 1095–1096, 141 N.Y.S.3d 369 ). " ‘[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury’ " ( Leem v. 152–24 Northern, LLC, 201 A.D.3d at 919, 157 N.Y.S.3d 749, quoting Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ).

Here, the defendant's submissions failed to eliminate triable issues of fact with respect to whether the defendant had actual or constructive notice of the alleged dangerous condition. The defendant provided, inter alia, a transcript of the plaintiff's deposition testimony, in which the plaintiff stated that he had complained to the manager before his accident that the throne was a "tripping hazard," and that he knew of at least one other person who had also tripped over the throne.

However, the defendant established, prima facie, that the large decorative throne that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous (see Williams v. E & R Jamaica Food Corp., 202 A.D.3d 1028, 1029, 159 N.Y.S.3d 732 ; Luttenberger v. McManus–Lorey Funeral Home, Ltd., 200 A.D.3d 671, 671, 154 N.Y.S.3d 834 ). " ‘[T]here 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’ " ( Luttenberger v. McManus–Lorey Funeral Home, Ltd., 200 A.D.3d at 671, 154 N.Y.S.3d 834, quoting Costidis v. City of New York, 159 A.D.3d 871, 871, 70 N.Y.S.3d 74 ; see Capasso v. Village of Goshen, 84 A.D.3d 998, 999, 922 N.Y.S.2d 567 ; Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767 N.Y.S.2d 40 ). " ‘A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident’ " ( Williams v. E & R Jamaica Food Corp., 202 A.D.3d at 1029, 159 N.Y.S.3d 732, quoting Robbins v. 237 Ave. X, LLC, 177 A.D.3d 799, 799, 113 N.Y.S.3d 235 [internal quotation marks omitted]). " ...