| Burke v Canyon Rd. Rest. |
| 2009 NY Slip Op 02294 [60 AD3d 558] |
| March 26, 2009 |
| Appellate Division, First Department |
| Eileen Burke et al., Appellants, v Canyon Road Restaurantet al., Respondents. |
—[*1] Eustace & Marquez, White Plains (Kenneth L. Gresham of counsel), for Canyon RoadRestaurant and Ark Restaurants Corp., respondents. Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for GP Associates,respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered June 13, 2008, which, inthis action for personal injuries sustained when plaintiff Eileen Burke fell while exitingdefendants' restaurant, granted defendants' motions for summary judgment dismissing thecomplaint, unanimously affirmed, without costs.
The entranceway at issue included a step leading to a door that led into the restaurant, andthe accident occurred when plaintiff fell when she missed the step while leaving the restaurant.Although landowners have a duty to maintain their property in a reasonably safe condition, andto warn of latent hazards of which they are aware (see Basso v Miller, 40 NY2d 233, 241[1976]), a court is not "precluded from granting summary judgment to a landowner on theground that the condition complained of by the plaintiff was both open and obvious and, as amatter of law, was not inherently dangerous" (Cupo v Karfunkel, 1 AD3d 48, 52 [2003]). Based on thedeposition testimony that there was no debris or water on the ground where plaintiff fell, that shedid not trip or slip on anything, that the area of the accident was illuminated, and that the generalmanager of the restaurant for the last several years was not aware of any complaints or accidents,or code violations or repairs of the front step, defendants demonstrated their prima facieentitlement to summary judgment (seeJones v Presbyterian Hosp. in City of N.Y., 3 AD3d 225, 226 [2004]).
In opposition, plaintiff failed to raise a triable issue of fact. Her expert referred to the generalprovisions of Administrative Code of the City of New York §§ 27-127 and 27-128,and opined that the entranceway was defectively maintained, but he failed to set forth anyviolations of industry-wide standards or accepted practices in the field (see Jones v City of New York, 32AD3d 706, 707 [2006]). Furthermore, although an expert affidavit can nonetheless raisequestions as to common-law negligence (see Wilson v Proctors Theater & Arts Ctr. &Theater of Schenectady, 223 AD2d 826, 828-829 [1996]), the evidence here fails to establishthat the subject step was inherently dangerous[*2]or that it constituted a "hidden trap" (see Schreiber vPhilip & Morris Rest. Corp., 25 AD2d 262, 263 [1966], affd 19 NY2d 786 [1967];compare Chafoulias v 240 E. 55th St. Tenants Corp., 141 AD2d 207 [1988]).Concur—Andrias, J.P., Gonzalez, Buckley and Acosta, JJ.