| Cooper v American Carpet & Restoration Servs., Inc. |
| 2010 NY Slip Op 00091 [69 AD3d 552] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Lisa Cooper et al., Appellants, v American Carpet andRestoration Services, Inc., Respondent. |
—[*1] Richard T. Lau, Jericho, N.Y. (Nancy S. Goodman of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Weber, J.), dated September 9, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint is denied.
The injured plaintiff's place of employment became flooded after a rainstorm, and heremployer retained the defendant to remedy the condition. The defendant used, among otherthings, a hose connected to a truck to extract the water from the premises. To get to the ladiesroom, the injured plaintiff began to walk down an interior ramp. There was a hose on the ramp,which was coiled up and spread across most of the width of the ramp. As she tried to step overthe hose, the heel of one of her shoes became caught in the hose, and she fell. As a result, theinjured plaintiff and her husband, derivatively, commenced this action against the defendant. Thedefendant moved for summary judgment, contending that the presence of the hose on the rampwas open and obvious and not inherently dangerous. In reply, the defendant also argued that itowed no duty of care to the injured plaintiff. The Supreme Court granted the motion on theground that the hose was open and obvious and not inherently dangerous. We reverse.
Here, the defendant failed to establish, prima facie, that the hose, which was coiled and tookup most of the width of the ramp, was not inherently dangerous (see Salomon v Prainito, 52 AD3d803 [2008]; Fabish v Garden BayManor Condominium, 44 AD3d 820 [2007]; Belogolovkin v 1100-1114 Kings Highway LLC, 35 AD3d 514[2006]; Palmer v Vitrano, 29 AD3d656 [2006]). The fact that the condition was open and obvious only raised a triable issue offact as to the injured plaintiff's comparative negligence (see Cupo v Karfunkel, 1 AD3d 48 [2003]). Although the defendantimproperly raised for the first time in its reply papers the contention that it owed no duty of careto the injured plaintiff, we may consider it on appeal because the existence of a duty presents aquestion of law which could not have been avoided if brought to the Supreme Court's attention atthe proper juncture (see Dugan v [*2]Crown Broadway, LLC, 33 AD3d 656 [2006]). "As ageneral rule, a party who enters into a contract to render services does not assume a duty of careto third parties outside the contract" (id.; see Church v Callanan Indus., 99 NY2d104, 111 [2002]; Espinal v Melville Snow Contrs., 98 NY2d 136, 138-139 [2002])."Nevertheless, a recognized exception to this rule exists where a defendant who undertakes torender services negligently creates or exacerbates a dangerous condition" (Dugan v CrownBroadway, LLC, 33 AD3d at 656; see Church v Callanan Indus., 99 NY2d at 111;Espinal v Melville Snow Contrs., 98 NY2d at 141-142). Under the circumstances, thedefendant failed to establish, prima facie, that it did not create the alleged hazardous condition(see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Laap v Francis, 54 AD3d 1006[2008]; Dugan v Crown Broadway,LLC, 33 AD3d 656 [2006]). Since the defendant failed to meet its initial burden as themovant, this Court need not review the sufficiency of the plaintiffs' opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Fisher, J.P., Angiolillo,Dickerson and Leventhal, JJ., concur.