Katz v Westchester County Healthcare Corp.

2011 NY Slip Op 01620 [82 AD3d 712]

March 1, 2011

Appellate Division, Second Department

As corrected through Wednesday, May 11, 2011

Patrice Katz, Respondent, v Westchester CountyHealthcare Corporation et al., Appellants.

—[*1]Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Claudine Weis ofcounsel), for appellants.

Lucchese & D'Ammora, LLP, White Plains, N.Y. (Andrew Bokar of counsel), forrespondent.

In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (Loehr, J.), entered February 3, 2010, which denied theirmotion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

A property owner has a duty to maintain his or her property in a reasonably safe condition(see Basso v Miller, 40 NY2d 233, 241 [1976]). However, a property owner has no dutyto protect or warn against an open and obvious condition, which as a matter of law is notinherently dangerous (see Tyz v First St.Holding Co., Inc., 78 AD3d 818 [2010]; Weiss v Half Hollow Hills Cent. School Dist., 70 AD3d 932[2010]; Bretts v Lincoln Plaza Assoc.,Inc., 67 AD3d 943 [2009]; Neville v 187 E. Main St., LLC, 33 AD3d 682 [2006]; Cupo v Karfunkel, 1 AD3d 48[2003]). Whether a hazard is open and obvious cannot be divorced from the surroundingcircumstances. A condition that is ordinarily apparent to a person making reasonable use of his orher senses may be rendered a trap for the unwary where the condition is obscured or the plaintiffis distracted (see Stoppeli vYacenda, 78 AD3d 815, 816 [2010]; Villano v Strathmore Terrace Homeowners Assn., Inc., 76 AD3d1061 [2010]; Shah v Mercy Med.Ctr., 71 AD3d 1120 [2010]; Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2008]).Here, the defendants failed to establish, prima facie, that the alleged condition that caused theplaintiff to trip and fall was open and obvious and not inherently dangerous (see Carson v Baldwin Union Free SchoolDist., 77 AD3d 878 [2010]; seegenerally Cupo v Karfunkel, 1 AD3d 48 [2003]). Since the defendants did not meet theirinitial burden as the movants, the burden never shifted to the plaintiff to submit evidencesufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851 [1985]). Accordingly, the Supreme Court correctly denied the defendants' motion forsummary judgment dismissing the complaint. Covello, J.P., Lott, Roman and Miller, JJ., concur.