| McGrath v Oyster Bay Visiting Nurse Assn., Inc. |
| 2011 NY Slip Op 04011 [84 AD3d 894] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Joanna McGrath, Appellant, v Oyster Bay Visiting NurseAssociation, Inc., et al., Respondents, et al., Defendant. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T. Reagan of counsel), forrespondents Oyster Bay Visiting Nurse Association, Inc., and Visiting Nurse Association ofOyster Bay/Glen Cove. Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Ondine C. Slone andGabriella Campiglia of counsel), for respondent Youth & Family Counseling of OysterBay.
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited byher brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), datedDecember 17, 2009, as granted those branches of the motion of the defendant Youth & FamilyCounseling of Oyster Bay and the cross motion of the defendants Oyster Bay Visiting NurseAssociation, Inc., and Visiting Nurse Association of Oyster Bay/Glen Cove which were forsummary judgment dismissing the complaint insofar as asserted against them, and (2) from ajudgment of the same court dated February 23, 2010, which, upon the order, is in favor of thedefendants Oyster Bay Visiting Nurse Association, Inc., and Visiting Nurse Association ofOyster Bay/Glen Cove dismissing the complaint insofar as asserted against them.
Ordered that the appeal from so much of the order as granted that branch of the cross motionof the defendants Oyster Bay Visiting Nurse Association, Inc., and Visiting Nurse Association ofOyster Bay/Glen Cove which was for summary judgment dismissing the complaint insofar asasserted against them is dismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs.[*2]
The appeal from so much of the order as granted thatbranch of the cross motion of the defendants Oyster Bay Visiting Nurse Association, Inc., andVisiting Nurse Association of Oyster Bay/Glen Cove which was for summary judgmentdismissing the complaint insofar as asserted against them must be dismissed, as the right of directappeal from that part of the order terminated with the entry of the judgment dated February 23,2010 (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appealfrom the order have been considered on the appeal from the judgment (see CPLR 5501[a]).
The defendant Youth & Family Counseling of Oyster Bay (hereinafter YFCA) operated froma building located on premises owned and managed by the defendants Oyster Bay Visiting NurseAssociation, Inc., and Visiting Nurse Association of Oyster Bay/Glen Cove (hereinafter togetherVNA). A contractor hired by VNA to repave the parking lot in front of the building erectedyellow tape around the perimeter of the lot to prevent people from entering the lot while therepaving project was taking place. The plaintiff arrived at the premises and attempted to enter thebuilding through a side door. Finding it locked, she attempted to access the front door of thebuilding by climbing an embankment outside the perimeter of the parking lot, and was lifting upthe tape while stepping over a row of Belgian blocks when she fell and allegedly sustainedinjuries.
A landowner has a duty to maintain his or her premises in a reasonably safe manner;however, there is no duty to protect or warn against an open and obvious condition that is notinherently dangerous (see Gutman vTodt Hill Plaza, LLC, 81 AD3d 892 [2011]; Tyz v First St. Holding Co., Inc., 78 AD3d 818, 819 [2010]).
YFCA and VNA, moving separately, established their prime facie entitlement to judgment asa matter of law by submitting evidence sufficient to demonstrate that the condition complained ofwas open and obvious, known to the plaintiff, and not inherently dangerous (see Espada v Mid-Island Babe RuthLeague, Inc., 50 AD3d 843 [2008]; Errett v Great Neck Park Dist., 40 AD3d 1029 [2007]; Colao v Community Programs Ctr. of LongIs., Inc., 29 AD3d 723, 724 [2006]; Sun Ho Chung v Jeong Sook Joh, 29 AD3d 677, 678 [2006]), andthat the plaintiff's conduct was the sole proximate cause of her injuries (see Pomianowski v City of New York,67 AD3d 761, 762-763 [2009]; Sorrentino v Paganica, 18 AD3d 858, 859 [2005]; Amaya v L'Hommedieu, 6 AD3d638, 638-639 [2004]; Breem v Long Is. Light. Co., 256 AD2d 294, 295 [1998]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp. 68 NY2d 320, 324 [1986]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court correctly granted those branches of the defendants' motionand cross motion, respectively, which were for summary judgment dismissing the complaintinsofar as asserted against them. Dillon, J.P., Covello, Eng and Chambers, JJ., concur.