| Klee v Cablevision Sys. Corp. |
| 2010 NY Slip Op 07513 [77 AD3d 794] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Maria Klee, Appellant, v Cablevision Systems Corp. et al.,Respondents. |
—[*1] Newman Myers Kreines Gross Harris, P.C., New York, N.Y. (Olivia M. Gross, Ian F. Harris,and Adrienne Yaron of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Dutchess County (Pagones, J.), dated June 3, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
On September 18, 2005, the plaintiff allegedly tripped and fell over a black cable which wasinstalled at her home by a field technician for the defendants Cablevision Systems Corp.,Cablevision, and Cablevision of Wappingers Falls, Inc. The cable was placed above ground andstretched across the plaintiff's yard to a nearby utility pedestal. According to a field servicesupervisor who worked for the defendants, such cable would remain above ground onlytemporarily. The field service supervisor testified at his deposition that the cable had to be buriedunderground and that such burial would normally be completed within 15 business days of theabove-ground installation. The cable on the plaintiff's lawn, however, remained unburied andstretched across the length of her lawn for somewhere between four and six months afterinstallation and prior to the plaintiff's accident. The plaintiff testified at her deposition that priorto her accident, she complained at least seven times to the defendants to remove the cable.
The defendants moved for summary judgment dismissing the complaint. They argued, interalia, that the cable was open and obvious and not inherently dangerous. The Supreme Courtgranted their motion. We reverse.
The defendants failed to establish, prima facie, that under the circumstances of this case, thecable was not inherently dangerous (seev Villano v Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061 [2010]; Cooper v American Carpet & RestorationServs., Inc., 69 AD3d 552, 553 [2010]; Cupo v Karfunkel, 1 AD3d 48, 52 [2003]). The cable, which wasstretched across the plaintiff's lawn for four to six months, was a tripping hazard which thedefendants failed to remedy, despite notice of [*2]the condition.The fact that "the condition was open and obvious only raised a triable issue of fact as to theinjured plaintiff's comparative negligence" (Cooper v American Carpet & Restoration Servs.,Inc., 69 AD3d at 553; see Cupo v Karfunkel, 1 AD3d at 52).
In light of the defendants' failure to meet their prima facie burden, it is not necessary toconsider the sufficiency of the plaintiff's opposition papers (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). The defendants' remaining contention is without merit. Accordingly, thedefendants' motion for summary judgment dismissing the complaint should have been denied.Rivera, J.P., Angiolillo, Chambers and Austin, JJ., concur.