| Clark v AMF Bowling Ctrs., Inc. |
| 2011 NY Slip Op 03016 [83 AD3d 761] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Sheila Clark, Appellant, v AMF Bowling Centers, Inc.,Respondent. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner andLindsay J. Kalick of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Putnam County (Nicolai, J.), dated April 28, 2010, 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 allegedly was injured when she walked through the lobby of a bowling alleyowned by the defendant and tripped and fell over a knee-high table. She commenced this actionagainst the defendant alleging, inter alia, that there was inadequate lighting in the lobby. Thedefendant moved for summary judgment dismissing the complaint, contending that the table wasopen and obvious, and not inherently dangerous. The Supreme Court granted the motion. Wereverse.
While a landowner has a duty to maintain its premises in a reasonably safe manner (seeBasso v Miller, 40 NY2d 233 [1976]), it does not have a duty to protect against an open andobvious condition, which, as a matter of law, is not inherently dangerous (see Cupo v Karfunkel, 1 AD3d 48[2003]). "The fact that a defect may be open and obvious does not negate a landowner's duty tomaintain its premises in a reasonably safe condition, but may raise an issue of fact as to theplaintiff's comparative negligence" (Ruiz v Hart Elm Corp., 44 AD3d 842, 843 [2007]). "Whether adangerous condition exists on real property so as to create liability on the part of the landownerdepends on the peculiar facts and circumstances of each case and is generally a question of factfor the jury" (Fasano v Green-WoodCemetery, 21 AD3d 446, 446 [2005]). A condition that is generally apparent "to aperson making reasonable use of their senses may be rendered a trap for the unwary where thecondition is obscured or the plaintiff is distracted" (Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2008]).The determination of "[w]hether an asserted hazard is open and obvious cannot be divorced fromthe surrounding circumstances" (id. at 1009; see Shah v Mercy Med. Ctr., 71 AD3d 1120 [2010]).
Here, the defendant failed to meet its initial burden of establishing its entitlement to [*2]judgment as a matter of law. In view of the surroundingcircumstances, which included dim lighting and the unusual way in which certain furniture wasplaced, the evidence submitted by the defendant did not eliminate triable issues of fact as towhether the table was an open and obvious, and not inherently dangerous, condition (see Villano v Strathmore TerraceHomeowners Assn., Inc., 76 AD3d 1061, 1061-1062 [2010]; Salomon v Prainito, 52 AD3d 803,804-805 [2008]; Femenella v PellegriniVineyards, LLC, 16 AD3d 546, 546-547 [2005]; Mauriello v Port Auth. of N.Y. & N.J., 8 AD3d 200 [2004]).
As the defendant failed to meet its prima facie burden on the motion, it is unnecessary toconsider the adequacy of the opposing papers (see Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d634, 637 [2010]).
Accordingly, the defendant's motion for summary judgment dismissing the complaint shouldhave been denied. Rivera, J.P., Dickerson, Lott and Cohen, JJ., concur.