Mooney v Petro, Inc.

2008 NY Slip Op 04482 [51 AD3d 746]

May 13, 2008

Appellate Division, Second Department

As corrected through Wednesday, July 16, 2008

Francis Mooney, Jr., Respondent, v Petro, Inc., et al.,Appellants.

—[*1]Hodges Walsh & Slater, LLP, White Plains, N.Y. (Lisa M. Rolle, Paul E. Svensson, andCynthia K. Messemer of counsel), for appellants.

Laub & Delaney, LLP (Diane Welch Bando, Irvington, N.Y. [Alfred C. Laub], of counsel),for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Dutchess County (Brands, J.), dated July 11, 2007, which denied theirmotion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint. In support of their motion, the defendants primarily argued that theallegedly dangerous condition which caused the subject accident was open and obvious.Although there is no duty to warn of an open and obvious condition, this principle does notabsolve a landowner of the duty to maintain the property in a reasonably safe condition (see Cupo v Karfunkel, 1 AD3d 48,51-52 [2003]; DiVietro v GouldPalisades Corp., 4 AD3d 324 [2004]). Here, the defendants failed to establish theirentitlement to judgment as a matter of law because they did not make a prima facie showing thatthey maintained their premises in a reasonably safe condition (see Fabish v Garden Bay ManorCondominium, 44 AD3d 820 [2007]; Hogan v Baker, 29 AD3d 740 [2006]; Femenella v Pellegrini Vineyards,LLC, 16 AD3d 546 [2005]). Furthermore, contrary to their contentions on appeal, thedefendants also failed to demonstrate as a matter of law that the accident was unforeseeable(see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Gray v Amerada Hess Corp., 48 AD3d747 [2008]; Adams v LembergEnters., Inc., 44 AD3d 694 [2007]; Culotta v Smithtown Cent. School Dist.,[*2]37 AD3d 755 [2007]), or that the plaintiff's allegednegligence was the sole proximate cause of the accident (see Pabon v Nouveau El. Indus., Inc., 49 AD3d 702 [2008]; Gray v Amerada Hess Corp., 48 AD3d747 [2008]). In light of this determination, we need not examine the sufficiency of theplaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]; Pabon v Nouveau El. Indus.,Inc., 49 AD3d 702 [2008]; Fabish v Garden Bay Manor Condominium, 44 AD3d 820 [2007]).Rivera, J.P., Santucci, Eng and Chambers, JJ., concur.