| Cassone v State of New York |
| 2011 NY Slip Op 05215 [85 AD3d 837] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Anthony Cassone, Appellants, v State of New York,Respondent. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent.
In a claim to recover damages for personal injuries, etc., the claimants appeal from an orderof the Court of Claims (Lack, J.), dated December 31, 2009, which granted the defendant'smotion for summary judgment dismissing the claim.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the claim is denied.
On October 21, 2007, Angela Cassone (hereinafter Angela), along with as many as 50,000other people, took part in a breast cancer walk on the boardwalk at Jones Beach State Park. Asshe was walking, she tripped and fell on an orange cone that was secured to the boardwalk. As aresult of the accident, Angela, and her husband, suing derivatively, brought this claim against thedefendant, State of New York, to recover damages for personal injuries. The defendant movedfor summary judgment dismissing the claim on the ground that the allegedly dangerous conditioncomplained of (i.e., the orange cone secured to the boardwalk) was open and obvious, and notinherently dangerous. The Court of Claims granted the motion. We reverse.
A property owner is charged with the duty of maintaining its premises in a reasonably safecondition (see Basso v Miller, 40 NY2d 233, 241 [1976]; Katz v Westchester County HealthcareCorp., 82 AD3d 712 [2011]). To be entitled to summary judgment, a defendant isrequired to show, prima facie, that it maintained its premises in a reasonably safe condition andthat it did not have notice of or create a dangerous condition that posed a foreseeable risk ofinjury to persons expected to be on the premises (see Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475, 476 [2004]).
Here, the defendant does not argue that it did not create the condition of which Angelacomplained. Indeed, the defendant concedes that the orange cone was placed by it to warn of adangerous defect present on the boardwalk under the cone at the location where Angela'saccident occurred. The defendant argues that it is entitled to judgment as a matter of law becausethe orange cone that Angela tripped over was an open and obvious condition, and not inherentlydangerous.
The issue of whether a dangerous condition is open and obvious is fact specific, and usually aquestion of fact for a jury to resolve (seeGutman v Todt Hill Plaza, LLC, 81 AD3d 892 [2011]; [*2]Shah vMercy Med. Ctr., 71 AD3d 1120 [2010]). Whether a hazard is open and obvious cannotbe divorced from the surrounding circumstances (see Katz v Westchester County HealthcareCorp., 82 AD3d at 712). A condition that is ordinarily apparent to a person makingreasonable use of his or her senses may be rendered a trap for the unwary where the condition isobscured or the plaintiff is distracted (id.; Stoppeli v Yacenda, 78 AD3d 815, 816 [2010]; Villano v Strathmore Terrace HomeownersAssn., Inc., 76 AD3d 1061 [2010]; Shah v Mercy Med. Ctr., 71 AD3d 1120 [2010]; Mazzarelli v 54 Plus Realty Corp., 54AD3d 1008, 1009 [2008]). Viewing the evidence submitted by the defendant, whichincluded Angela's deposition testimony and photographs, in the light most favorable to thedefendant, it failed to establish its prima facie entitlement to judgment as a matter of law. Thedefendant failed to establish, prima facie, that the cone was open and obvious under thecircumstances surrounding the accident, as it may have been obscured or concealed during thewalk given the large number of people traversing the boardwalk (see generally Beck v Bethpage Union FreeSchool Dist., 82 AD3d 1026 [2011]; Villano v Strathmore Terrace HomeownersAssn, Inc., 76 AD3d at 1061). In this regard, Angela testified at her deposition that at thetime she was on the boardwalk participating in the walk it was crowded and that the peoplewalking in front of her were only an arm's length away when her left foot hit the secured coneand she fell to the boardwalk. She further testified that she did not see the cone she tripped onuntil after she fell, and observed no cones on the boardwalk prior to her accident.
Accordingly, the Court of Claims should have denied the defendant's motion for summaryjudgment dismissing the claim, regardless of the sufficiency of the claimants' opposition (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Beck v Bethpage UnionFree School Dist., 82 AD3d at 1026; Villano v Strathmore Terrace Homeowners Assn,Inc., 76 AD3d at 1061). Dillon, J.P., Balkin, Belen and Sgroi, JJ., concur.