| Russ v Fried |
| 2010 NY Slip Op 04569 [73 AD3d 1153] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Sam Russ, Appellant, v Aharon Fried et al., Respondents,et al., Defendant. |
—[*1] James J. Toomey, New York, N.Y. (Evy L. Kazansky of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Miller, J.), dated March23, 2009, as granted the motion of the defendants Aharon Fried and Rivka Fried for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
On March 8, 2002, at approximately 8:30 p.m., the plaintiff allegedly stumbled and fell tothe ground while stepping down to the roadway of 48th Street from the lip of the driveway onthe property of the defendants Aharon Fried and Rivka Fried (hereinafter together thedefendants) in the Borough Park section of Brooklyn. At the time of the occurrence, the plaintiffwas wearing an ankle brace to stabilize his right ankle, which he had injured 12 days earlierwhen he stepped into a pothole. As a result of the subject accident, the plaintiff allegedlyreinjured his right ankle. The plaintiff subsequently commenced the present action, alleging thatthe height differential between the lip of the driveway and the roadway on 48th Street constituteda dangerous and defective condition. After joinder of issue, the defendants moved for summaryjudgment dismissing the complaint insofar as asserted against them.
The Supreme Court properly granted the motion. Although a property owner has a duty tomaintain his or her property in a reasonably safe condition (see Basso v Miller, 40 NY2d233 [1976]; Capozzi v Huhne, 14 AD3d 474 [2005]), there is "no duty to protect or warnagainst an open and obvious condition, which, as a matter of law, is not inherently dangerous"(Fernandez v Edlund, 31 AD3d 601, 602 [2006]). Here, the defendants demonstratedtheir entitlement to judgment as a matter of law by submitting evidence, inter alia, in the form ofphotographs of the accident scene, showing that the height differential between the lip of thedriveway and the adjacent roadway was not inherently dangerous and could have been readilyobserved by the reasonable use of one's senses (id.). In opposition, the plaintiff failed toraise a triable issue of fact (see CPLR 3212 [b]). The plaintiff's statement in his affidavitthat it was dark at the time of the accident and, accordingly, that the height differential was notnoticeable, presented a feigned issue of fact designed to avoid the consequences of his earlierdeposition testimony that lighting conditions at the time of the occurrence were "fine" (seeDenicola v Costello, 44 AD3d 990 [2007]). Mastro, J.P., Santucci, Belen and Chambers, JJ.,concur.