| Shah v Mercy Med. Ctr. |
| 2010 NY Slip Op 02770 [71 AD3d 1120] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Shashi Shah, Respondent, v Mercy Medical Center et al.,Appellants. |
—[*1] Carlucci & Giardina, LLP, New York, N.Y. (Don D. Carlucci of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Mahon, J.), entered May 7, 2009, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On the morning of March 10, 2005, the plaintiff, a urologist, was performing a lithotripsyprocedure on a patient at premises owned by the defendant Mercy Medical Center. Such aprocedure uses shock waves to eliminate kidney stones. At some point in the procedure, theplaintiff found it necessary to view an X-ray film on an X-ray view box, located on the other sideof the room from where he was performing the procedure, in order to ascertain the preciselocation of the patient's kidney stone. As the plaintiff walked across the room toward the X-rayview box, he tripped and fell over six cables which extended from an anesthesia machine to theceiling of the room in such a way that they were stretched low to the floor and across thepathway taken by the plaintiff.
After joinder of issue, the defendants moved for summary judgment dismissing thecomplaint on the ground that the cables were open and obvious and not inherently dangerous.The issue of whether a dangerous condition is open and obvious is fact-specific, and usually aquestion for a jury (see Ruiz v Hart Elm Corp., 44 AD3d 842 [2007]). Whether anasserted hazard is open and obvious cannot be divorced from the surrounding circumstances. Acondition that is ordinarily apparent to a person making reasonable use of his or her senses maybe rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted(see Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2008]). The evidencesubmitted by the defendants, including, inter alia, the plaintiff's deposition testimony, wasinsufficient to establish, prima facie, the defendants' entitlement to judgment as a matter of law.Under these circumstances, it is not necessary to consider the sufficiency of the plaintiff'sopposition papers (see Tchjevskaia v Chase, 15 AD3d 389 [2005]).
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Prudenti, P.J., Balkin, Leventhal and Austin, JJ., concur.