| Tyz v First St. Holding Co., Inc. |
| 2010 NY Slip Op 08093 [78 AD3d 818] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Jean Tyz, Appellant, v First Street Holding Company, Inc.,et al., Respondents. |
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In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Grays, J.), dated January 5, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff fell, after failing to notice an elevation differential, caused by a single step riserseparating an elevated area of the restaurant where she had eaten dinner, and the floor of the mainarea of the restaurant. Notably, the plaintiff had traversed the riser, without incident,approximately two hours earlier, when she first entered the booth where she ate her meal. At herdeposition, the plaintiff acknowledged that she did not know where she was looking when sheexited the booth after finishing her meal.
The defendants moved for summary judgment dismissing the complaint, contending, interalia, that the riser was open and obvious and not inherently dangerous. The Supreme Courtgranted the motion. We affirm.
While a landowner has a duty to maintain its premises in a reasonably safe manner (seeBasso v Miller, 40 NY2d 233, 234 [1976]), a landowner has no duty to protect or warnagainst open and obvious conditions that are not inherently dangerous (see Weiss v Half Hollow Hills Cent.School Dist., 70 AD3d 932, 933 [2010]; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 557[2009]). Here, the defendants established their entitlement to judgment as a matter of law withphotographic evidence that the blue carpeting of the riser stood in sharp visual contrast to thestained red oak floor of the restaurant. In support of their motion, the defendants also submitted aletter from the Incorporated Village of Mineola to the restaurant's owner, which indicated that aroutine inspection, which was performed on a prior date, when the complained-of conditionalready existed, failed to find any violations of the applicable fire and building codes.[*2]
The evidence presented by the plaintiff in opposition tothe defendants' motion for summary judgment dismissing the complaint, including the affidavitof her engineering expert and the expert's report, failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint. Dillon, J.P., Angiolillo, Hall and Roman, JJ., concur.