| Demuth v Best Buy Stores, L.P. |
| 2011 NY Slip Op 05014 [85 AD3d 713] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Colleen Demuth, Respondent, v Best Buy Stores, L.P.,Appellant, et al., Defendants. (And a Third-Party Action.) |
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In an action to recover damages for personal injuries, the defendant Best Buy Stores, L.P.,appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County(Iannacci, J.), entered June 7, 2010, as denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when she tripped and fell over a cluster of concreteprotruding from the ground in an area adjacent to a store owned by the defendant Best BuyStores, L.P. (hereinafter Best Buy). The plaintiff commenced this action against, among others,Best Buy, and Best Buy moved for summary judgment dismissing the complaint insofar asasserted against it, contending that the condition that caused the plaintiff to fall was open andobvious and not inherently dangerous. The Supreme Court, inter alia, denied the motion, andBest Buy appeals.
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 issue of whether a dangerous condition is open and obvious is fact-specific, andusually a question for a jury" (Shah vMercy Med. Ctr., 71 AD3d 1120, 1120 [2010]; see Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008, 1009[2008]).
The evidence submitted by Best Buy in support of its motion was insufficient to establish, asa matter of law, that the condition that caused the plaintiff to fall was open and obvious and notinherently dangerous (see Villano vStrathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061 [2010]; Tulovic vChase Manhattan Bank, 309 AD2d 923, 924-925 [2003]). Best Buy failed to demonstratethat the cluster of concrete on which the plaintiff tripped was a naturally occurring topographiccondition or some other condition that a landowner could not reasonably be expected to remedy,and thus failed to show that it was not inherently dangerous (see Cupo v Karfunkel, 1AD3d at 52; [*2]Tulovic v Chase Manhattan Bank, 309AD2d at 925). Accordingly, the Supreme Court properly denied Best Buy's motion for summaryjudgment dismissing the complaint insofar as asserted against it. Prudenti, P.J., Angiolillo, Florioand Cohen, JJ., concur.