| Barberio v Agramunt |
| 2007 NY Slip Op 08397 [45 AD3d 514] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Joseph Barberio et al., Appellants, v Susana Agramunt,Respondent, et al., Defendant. |
—[*1] Paganini, Herling, Cioci & Cusumano, Lake Success, N.Y. (Robert J. Doolan of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Robbins, J.), datedMay 31, 2006, as granted those branches of the motion of the defendant Susana Agramunt whichwere for summary judgment dismissing the causes of action alleging a violation of Labor Law§ 200 and common-law negligence insofar as asserted against her.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the motion of the defendant Susana Agramunt which were for summary judgmentdismissing the causes of action alleging a violation of Labor Law § 200 and common-lawnegligence insofar as asserted against her are denied.
In support of her motion for summary judgment, the defendant Susana Agramunt (hereinafterthe defendant) submitted, inter alia, her deposition testimony and that of the injured plaintiff.According to his deposition testimony, the injured plaintiff sustained his injuries when he fellwhile installing vinyl siding on a house owned by the defendant. Just prior to his fall, he wasstanding on a ladder he had placed on the cement driveway next to the house. As he swung hishammer, the ladder "twisted" and one of its legs "fell" into a crack in the cement driveway. The[*2]ladder then fell over and he fell to the ground. The defendantconceded at her deposition that the subject driveway had been in a deteriorated, cracked, andbroken condition for a long period of time, but she offered no proof as to the extent of thecondition.
Contrary to the determination of the Supreme Court, the defendant failed to establish, primafacie, her entitlement to judgment as a matter of law dismissing the causes of action alleging aviolation of Labor Law § 200 and common-law negligence. She failed to establish that shehad maintained her driveway in a reasonably safe manner, nor did she establish that she lackednotice of the defective condition (cf. Maggi v Innovax Methods Group Co., 250 AD2d576 [1998]). The fact that the deteriorated condition of the driveway was open and obvious didnot negate the defendant's duty to maintain the property in a reasonably safe condition (see Sportiello v City of New York, 6AD3d 421 [2004]; Cupo vKarfunkel, 1 AD3d 48, 52 [2003]; cf. Fernandez v Edlund, 31 AD3d 601 [2006]; Steiner v BenroalRealty Assoc., 290 AD2d 551 [2002]).
The plaintiffs' remaining contention is without merit. Spolzino, J.P., Santucci, Florio andAngiolillo, JJ., concur.