| Boston v City of New York |
| 2008 NY Slip Op 04303 [51 AD3d 615] |
| May 6, 2008 |
| Appellate Division, Second Department |
| George Boston et al., Respondents-Appellants, v City ofNew York, Respondent, and Charosa Foundation Corporation,Appellant-Respondent. |
—[*1] Apicella & Schlesinger, New York, N.Y. (Alan C. Kestenbaum of counsel), forrespondents-appellants. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the defendant Charosa FoundationCorporation appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (Flug, J.), entered May 24, 2007, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and the plaintiffscross-appeal, as limited by their brief, from so much of the same order as denied their motion forsummary judgment on the issue of liability against the defendant Charosa FoundationCorporation.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The plaintiff George Boston (hereinafter the plaintiff) was injured while on a sanitation truckcollecting trash for the defendant City of New York. After emptying a basket on the street cornerin front of a building occupied by the defendant Charosa Foundation Corporation (hereinafterCharosa), the plaintiff stood on a running board flush against the truck while his coworkerprepared to drive to the next pickup location. As the truck moved into traffic, the [*2]plaintiff's knees became caught between the truck and a 30-inchhigh brick "tree well" which Charosa recently had erected on the sidewalk, without a permit andin violation of a municipal regulation restricting the maximum height of a tree well to 1½to 2 inches. The plaintiff and his wife subsequently commenced this action against the City andCharosa.
Charosa moved for summary judgment dismissing the complaint insofar as asserted against itand the plaintiffs cross-moved for summary judgment on the issue of liability against Charosa.The Supreme Court denied the motions. We affirm.
Charosa failed to establish its prima facie entitlement to judgment as a matter of law as it didnot demonstrate that the tree well, an open and obvious condition, was not inherently dangerous.Rather, the open and obvious nature of the condition raised a triable issue of fact as to theplaintiff's comparative fault (seeSewitch v LaFrese, 41 AD3d 695 [2007]; Holly v 7-Eleven, Inc., 40 AD3d 1033 [2007]; Hogan v Baker, 29 AD3d 740[2006]; Tulovic v Chase Manhattan Bank, 309 AD2d 923, 924 [2003]). Nor did Charosaestablish that it satisfied its duty of general care to maintain the property in a reasonably safecondition (see Barberio v Agramunt,45 AD3d 514, 515 [2007]; Hogan v Baker, 29 AD3d 740 [2006]; Cupo v Karfunkel, 1 AD3d 48, 52[2003]; Tulovic v Chase Manhattan Bank, 309 AD2d 923 [2003]).
The plaintiffs also failed to establish their prima facie entitlement to judgment on the issue ofliability because the open and obvious nature of the tree well raised an issue of fact regarding theplaintiff's comparative fault (see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Scibelli v Hopchick, 27 AD3d 720[2006]).
The parties' remaining contentions are without merit. Ritter, J.P., Covello, Angiolillo andMcCarthy, JJ., concur.