| Capasso v Village of Goshen |
| 2011 NY Slip Op 04188 [84 AD3d 998] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Tanya Capasso et al., Appellants, v Village of Goshen etal., Respondents. (And a Third-Party Action.) |
—[*1] Hodges Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson and Harold Moroknekof counsel), for respondent Village of Goshen. Murphy & Lambiase, Goshen, N.Y. (George A. Smith of counsel), for respondent HarnessEstates, LLC. Jones Garneau, LLP, Scarsdale, N.Y. (Clifford I. Bass, Marcy Blake, and Jones Garneau ofcounsel), for respondent Carol Contracting, Inc. Milber, Makris, Plousadis & Seiden, LLP, White Plains, N.Y. (David C. Zegarelli ofcounsel), for respondent Lanc & Tully Engineering and Surveying, P.C. Ostrer Rosenwasser, LLP, Montgomery, N.Y. (Stewart A. Rosenwasser and Moriah M.Niblack of counsel), for respondent Alpine Environmental Consultants, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), datedFebruary 18, 2010, as granted the defendants' respective motions for summary judgmentdismissing the complaint insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to therespondents.
On November 23, 2006, the plaintiff Tanya Capasso (hereinafter the plaintiff) exited fromthe passenger side of her car in front of her aunt's house on Murray Avenue in the Village ofGoshen. After taking a few steps and while looking straight ahead, the plaintiff fell from the edgeof the newly paved curb onto the adjoining lawn and allegedly sustained injuries.
The plaintiff commenced this action sounding in negligence against the Village, who hadinstituted a repaving project on Murray Avenue, Harness Estates, LLC, which owned a nearbyhousing development connected with the project, and the contractors and subcontractors whoparticipated in the project. The evidence established that "wings" were included to elevate theedge of the curb along Murray Avenue to address the local problem of inadequate stormdrainage, which [*2]resulted in a curb 8-to-10 inches higher thanthe adjoining lawn where the plaintiff fell.
The Supreme Court properly granted the defendants' respective motions for summaryjudgment dismissing the complaint insofar as asserted against each of them. "A landowner has aduty to maintain its premises in a reasonably safe manner" (Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 557[2009]; see Basso v Miller, 40 NY2d 233 [1976]; Russ v Fried, 73 AD3d 1153, 1154 [2010]). However, "there is noduty to protect or warn against an open and obvious condition which, as a matter of law, is notinherently dangerous" (Fernandez vEdlund, 31 AD3d 601, 602 [2006] [internal quotation marks omitted]; see Russ vFried, 73 AD3d at 1154; Cupo vKarfunkel, 1 AD3d 48 [2003]). Although the question of whether a condition is hiddenor open and obvious is generally for the finder of fact to determine, the court may determine thata risk is open and obvious as a matter of law where clear and undisputed evidence compels sucha conclusion (see Tagle v Jakob, 97 NY2d 165, 169 [2001]; cf. Cupo v Karfunkel, 1 AD3d 48[2003]; Gibbons v Lido & Point Lookout Fire Dist., 293 AD2d 646 [2002]).
The defendants demonstrated their prima facie entitlement to judgment as a matter of law bysubmitting evidence that the 8-to-10 inch height differential between the edge of the curb fromwhich the plaintiff fell and the adjacent lawn was not inherently dangerous and was readilyobservable by the reasonable use of one's senses (see Russ v Fried, 73 AD3d 1153 [2010]; DiGeorgio v Morotta, 47 AD3d752 [2008]; Errett v Great NeckPark Dist., 40 AD3d 1029 [2007]; Fernandez v Edlund, 31 AD3d 601 [2006]; Capozzi v Huhne, 14 AD3d 474[2005]). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Accordingly, the Supreme Court properly granted the defendants' respective motions forsummary judgment dismissing the complaint insofar as asserted against each of them. Mastro,J.P., Balkin, Leventhal and Belen, JJ., concur.