| Anton v Correctional Med. Servs., Inc. |
| 2010 NY Slip Op 05645 [74 AD3d 1682] |
| June 24, 2010 |
| Appellate Division, Third Department |
| Matthew J. Anton et al., Appellants, v Correctional MedicalServices, Inc., Respondent. |
—[*1] Pennock, Breedlove & Noll, L.L.P., Clifton Park (Sarah I. Goldman of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Connolly, J.), entered October 16,2009 in Albany County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiffs commenced this negligence action alleging that plaintiff Matthew J. Antonsustained injuries in June 2004 during the course of his employment as a correction officer withthe Albany County Sheriff's Department (hereinafter Department). Anton was assigned to themedical unit of the Albany County Jail, which was operated, controlled and maintained bydefendant. The medical unit is comprised of a number of windowed holding cells located alongthe left sides of two corridors arranged in an "L" shape. Anton claims that he sustained injuriesto his knee when, while conducting an inmate head count and looking to his left into the holdingcells, he reached the end of the first corridor, turned the corner to enter the second, and walkedinto a metal bed frame positioned along one of the walls of the second corridor.[FN*]Defendant [*2]moved for summary judgment, contending that ithad no duty to warn of the open and obvious condition of the bed frame, which was notinherently dangerous. Supreme Court granted defendant's motion, finding that plaintiffs failed toraise a question of fact as to whether the existence of the bed frame in the corridor constituted aninherently dangerous condition. Plaintiffs now appeal, and we affirm.
Defendant, as the party in control of the medical unit, had a duty to exercise reasonable careto maintain the premises in a reasonably safe condition "in view of all the circumstances,including the likelihood of injury to others, the seriousness of the injury, and the burden ofavoiding the risk" (Basso v Miller, 40 NY2d 233, 241 [1976] [internal quotation marksomitted]; see Arsenault v Regan Trust, 263 AD2d 754, 754 [1999]; Turrisi vPonderosa, Inc., 179 AD2d 956, 957 [1992]). While an open and obvious defect will negatethe duty to warn of a potentially dangerous condition, it will not necessarily obviate adefendant's duty to maintain the property in a reasonably safe condition (see Tagle vJakob, 97 NY2d 165, 168-170 [2001]; England v Vacri Constr. Corp., 24 AD3d 1122, 1124 [2005]; Bilinski v Bank of Richmondville, 12AD3d 911, 911 [2004]; MacDonald v City of Schenectady, 308 AD2d 125, 126-128[2003]; Soich v Farone, 307 AD2d 658, 659 [2003]). To be entitled to summaryjudgment, defendant must establish "as a matter of law that [it] maintained the property inquestion in a reasonably safe condition and that [it] neither created the allegedly dangerouscondition existing thereon nor had actual or constructive notice thereof" (Godfrey v Town of Hurley, 68 AD3d1527, 1527 [2009] [internal quotation marks and citations omitted]).
Here, defendant established its prima facie entitlement to summary judgment throughevidence that the bed frame was in plain view, that, based on the corridor's width, there wasadequate room to navigate around the bed frame, and that its placement did not violate any safetyregulations (see Avina v Verburg,47 AD3d 1188, 1189-1190 [2008]; Bilinski v Bank of Richmondville, 12 AD3d at911-912). In opposition, plaintiffs failed to raise a triable issue of fact. Based on the positioningof the bed frame against the wall and upon defendant's prior knowledge that stretchers weresometimes stored in the corridors of the medical unit, the bed frame was open and obvious toanyone "employing the reasonable use of their senses" (Tarricone v State of New York,175 AD2d 308, 309 [1991], lv denied 78 NY2d 862 [1991]), and was not inherentlydangerous as a matter of law. While it is true that Anton would need to momentarily look intoeach cell as he walked the corridor conducting the head count, there is nothing in the record tosuggest that he would have been prevented from also looking where he was going and seeingwhat was there to be seen—in this case a bed frame. The conclusory opinion of plaintiffs'expert, which is not based on any cited width of the corridor, is insufficient to create a questionof fact to preclude summary judgment in defendant's favor (see Bilinski v Bank ofRichmondville, 12 AD3d at 912; Jackson v Gas Co., 2 AD3d 1104, 1106 [2003]).
Cardona, P.J., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: Anton also claims to bepermanently disabled after he fell down a flight of stairs in March 2006 due to the injuries hesustained in June 2004.