| Mazzarelli v 54 Plus Realty Corp. |
| 2008 NY Slip Op 07219 [54 AD3d 1008] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Angelina Mazzarelli, Appellant, v 54 Plus Realty Corp. etal., Respondents. |
—[*1] Edward J. Troy, Greenlawn, N.Y. (Patrick J. Morganelli of counsel), for respondent 54 PlusRealty Corp.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Baisley, J.), dated April 9, 2008, which granted the motionof the defendant 54 Plus Realty Corp. for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant 54Plus Realty Corp. for summary judgment dismissing the complaint insofar as asserted against itis denied.
The plaintiff's contention that the deposition transcript of the representative of the defendant54 Plus Realty Corp. (hereinafter the defendant) was in inadmissible form and thus improperlyconsidered by the motion court is without merit. Although the defendant did not submit thecomplete transcript with its original motion papers, the properly certified and executed signaturepage of the deposition transcript was submitted with its reply papers. The defendantdemonstrated that it forwarded the original signed transcript to the plaintiff's attorneyapproximately three months prior to moving for summary judgment. Under these circumstances,the plaintiff was not prejudiced by the omission of the signature page from the original motionpapers, which was properly disregarded by the Supreme Court (see CPLR 2001).
However, the plaintiff's contention that the court erred in awarding summary judgment to[*2]the defendant is correct since the evidence submitted by thedefendant, including the disputed deposition transcript, was insufficient to establish, prima facie,the defendant's entitlement to judgment as a matter of law.
The issue of whether a dangerous condition is open and obvious is fact-specific, and usuallya question for the jury (see Ruiz v HartElm Corp., 44 AD3d 842 [2007]). Whether an asserted hazard is open and obviouscannot be divorced from the surrounding circumstances. A condition that is ordinarily apparentto a person making reasonable use of their senses may be rendered a trap for the unwary wherethe condition is obscured or the plaintiff is distracted (see Mauriello v Port Auth. of N.Y. & N.J., 8 AD3d 200 [2004]).Under the circumstances of this case, there are issues of fact requiring the denial of summaryjudgment. Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.