| Villano v Strathmore Terrace Homeowners Assn., Inc. |
| 2010 NY Slip Op 06789 [76 AD3d 1061] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Rose Villano, Respondent, v Strathmore TerraceHomeowners Association, Inc., et al., Appellants. |
—[*1] Jonathan I. Edelstein, New York, N.Y. (Adekunbi Sijuwade and Gregory Bellantone ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), datedJanuary 4, 2010, as denied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
During the afternoon of June 9, 2007, the plaintiff allegedly was injured when she trippedand fell over a sprinkler head, located on her front lawn, which had failed to retract into theground despite the sprinkler system not being in operation at the time of the accident. Thesprinkler head, which was approximately four inches high and two inches wide, and black incolor, was situated in the corner of the front lawn immediately adjacent to the black asphaltdriveway and the curb.
The plaintiff's home is located within a development called Strathmore Terrace Community,which is operated by the defendant Strathmore Terrace Homeowners Association, Inc.(hereinafter the Strathmore HOA). The defendant Fairfield Properties Services, LP, managed theproperty. The plaintiff paid a monthly fee to the Strathmore HOA for maintenance of thegrounds, including the sprinkler system.
The plaintiff commenced this action to recover damages for personal injuries. The defendantsmoved for summary judgment dismissing the complaint. The Supreme Court, inter alia, deniedthe defendants' motion. We affirm the order insofar as appealed from.
To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendants hadto establish that they maintained the premises in a reasonably safe condition and that they did notcreate a dangerous or defective condition on their property or have either actual or constructivenotice of a dangerous or defective condition for a sufficient length of time to remedy it (see Molloy v Waldbaum, Inc., 72AD3d 659 [2010]; Gradwohl v Stop & Shop Supermarket Co., LLC, [*2]70 AD3d 634, 636 [2010]; see also Hayden v Waldbaum, Inc., 63 AD3d 679 [2009]; Denker v Century 21 Dept. Stores,LLC, 55 AD3d 527 [2008]).
Here, the defendants failed to meet their burden of establishing that, as a matter of law, theymaintained the premises in a reasonably safe condition (see Gradwohl v Stop & ShopSupermarket Co., LLC, 70 AD3d at 636). Although the defendants argued, inter alia, that theunretracted sprinkler head was an open and obvious condition which was not inherentlydangerous, under these circumstances, it cannot be determined, as a matter of law, that thedefendants were entitled to summary judgment dismissing the complaint (see Shah v Mercy Med. Ctr., 71 AD3d1120 [2010]; Cooper v AmericanCarpet & Restoration Servs., Inc., 69 AD3d 552 [2010]; Mazzarelli v 54 Plus Realty Corp., 54AD3d 1008 [2008]; Salomon vPrainito, 52 AD3d 803 [2008]; Mauriello v Port Auth. of N.Y. & N.J., 8 AD3d 200 [2004]; Cupo v Karfunkel, 1 AD3d 48, 52[2003]). "The issue of whether a dangerous condition is open and obvious is fact-specific, andusually a question for a jury" (Shah v Mercy Med. Ctr., 71 AD3d at 1120). Moreover,"[a] condition that is ordinarily apparent to a person making reasonable use of his or her sensesmay be rendered a trap for the unwary where the condition is obscured or the plaintiff isdistracted" (id.; see Mazzarelli v54 Plus Realty Corp., 54 AD3d 1008 [2008]). Here, given the dimensions of thesprinkler head and its location on the lawn in an area close to where pedestrians would betraversing, a triable issue of fact exists as to whether the unretracted sprinkler head was an openand obvious condition.
Moreover, "[p]roof that a dangerous condition is open and obvious merely negates thedefendant's obligation to warn of the condition, but does not preclude a finding of liabilityagainst a landowner for failure to maintain the property in a safe condition" (Gradwohl v Stop& Shop Supermarket Co., LLC, 70 AD3d at 636; see Cupo v Karfunkel, 1 AD3d 48 [2003]). Here, even though theplaintiff was aware of the location of the sprinkler head, it failed to retract into the ground as itshould have, since the sprinkler system was not in operation at the time of the accident. Thus, thedefendants failed to establish, as a matter of law, that the sprinkler head was not inherentlydangerous as a matter of law (seeCooper v American Carpet & Restoration Servs., Inc., 69 AD3d 552 [2010]; Salomon v Prainito, 52 AD3d 803[2008]; Cupo v Karfunkel, 1 AD3d48, 52 [2003]).
In addition, the defendants failed to submit evidence establishing that no question of factexisted as to whether their employees lacked either actual or constructive notice of the defectivesprinkler head (see Granillo v Toys "R"Us, Inc., 72 AD3d 1024 [2010]; Molloy v Waldbaum, Inc., 72 AD3d 659 [2010]).
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint regardless of the sufficiency of the plaintiff's oppositionpapers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Covello, J.P.,Santucci, Balkin and Austin, JJ., concur.