| Stoppeli v Yacenda |
| 2010 NY Slip Op 08090 [78 AD3d 815] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Richard Stoppeli et al., Appellants, v Donna Yacenda,Respondent. |
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Cohalan, J.), dated March 26, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff Richard Stoppeli (hereinafter the plaintiff) went to the defendant's residence toremove construction debris from her backyard. He allegedly sustained personal injuries as aresult of striking his head on a header, or beam, in the defendant's den, which was approximatelysix feet from the floor. The plaintiff is six feet, three inches tall, and at the time of theoccurrence, was wearing work shoes with a sole that was, at least, one inch thick. When theaccident occurred, the plaintiff had just entered the den from a staircase, and was being directedby the defendant, who was five feet, four inches tall, to a door in the den, which accessed thebackyard. It is undisputed that the defendant failed to warn the plaintiff about the limitedheadroom in the den.
After joinder of issue, the defendant moved for summary judgment dismissing the complainton the ground that the header was open and obvious, and not inherently dangerous, as a matter oflaw. The issue of whether a dangerous condition is open and obvious is fact-specific and usuallya question for a jury (see Shah v MercyMed. Ctr., 71 AD3d 1120 [2010]). Whether an asserted hazard is open and obviouscannot be divorced from the surrounding circumstances. A condition that is ordinarily apparentto a person making reasonable use of his or her senses may be 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 evidence submitted by the defendant in support of her motion, including, inter alia,the plaintiff's deposition testimony, was [*2]insufficient toestablish, prima facie, the defendant's entitlement to judgment as a matter of law. Indeed, theplaintiff's testimony indicated, among other things, that he was simply following the defendantthrough the downstairs level of her house, and that the defendant diverted his attention awayfrom the header shortly before the injury occurred (see Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634[2010]). Under these circumstances, it is not necessary to consider the sufficiency of theplaintiff's opposition papers (seeTchjevskaia v Chase, 15 AD3d 389 [2005]).
Accordingly, the Supreme Court should have denied the defendant's motion for summaryjudgment dismissing the complaint. Mastro, J.P., Leventhal, Hall and Lott, JJ., concur.