| Franzese v Tanger Factory Outlet Ctrs., Inc. |
| 2011 NY Slip Op 07200 [88 AD3d 763] |
| October 11, 2011 |
| Appellate Division, Second Department |
| Lorraine Franzese, Respondent, v Tanger Factory OutletCenters, Inc., Appellant. |
—[*1] Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, Lake Success,N.Y. (Harry Demiris and Sarah C. Lichtenstein of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Costello, J.), dated August 11, 2010, which denied itsrenewed motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
In an order dated May 18, 2010, the Supreme Court denied the defendant's motion forsummary judgment dismissing the complaint with leave to renew "upon the submission of properpapers." In support of its renewed motion for summary judgment dismissing the complaint, thedefendant submitted, inter alia, the unsigned deposition testimony of one of its formeremployees. The defendant also submitted three letters sent to that deponent requesting that thedeponent sign the forwarded deposition and return it to the defendant. In addition, the defendantsubmitted an affidavit from an individual attesting that the deponent had not returned a signedcopy of the deposition testimony to the defendant. The Supreme Court denied the defendant'srenewed motion for summary judgment on the ground that the unsigned deposition testimony didnot constitute admissible evidence. We affirm, but on a ground different from that relied upon bythe Supreme Court.
Contrary to the Supreme Court's determination, the unsigned deposition transcript submittedby the defendant was admissible. Pursuant to CPLR 3116 (a), before its use, the transcript of thedeposition of a deponent must be provided to the deponent for his or her review and signature,and any changes in form or substance desired by the deponent shall be recorded. If a deponentrefuses or fails to sign his or her deposition under oath within 60 days, it may be used as if fullysigned. The party seeking to use an unsigned deposition transcript bears the burden ofdemonstrating that a copy of the transcript had been submitted to the deponent for review andthat the deponent failed to sign and return it within 60 days (see Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]; Palumbov Innovative Communications Concepts, 175 Misc 2d 156, 157-158 [1997], affd 251AD2d 246 [1998]). Here, the Supreme Court erred in determining that the unsigned depositiontestimony was not in admissible [*2]form. The defendantdemonstrated that it had forwarded the deposition to the deponent for his consideration andreview and that the deponent failed to sign and return it within 60 days. Therefore, under thecircumstances, the unsigned deposition testimony was in admissible form.
Nevertheless, even upon consideration of the unsigned deposition testimony, we concludethat the Supreme Court's denial of the defendant's renewed motion for summary judgmentdismissing the complaint was proper.
A landowner has a duty to maintain its premises in a reasonably safe manner (see Basso vMiller, 40 NY2d 233, 241 [1976]) and, thus, may be found liable if it created or had actual orconstructive notice of the alleged defective condition (see Gordon v American Museum ofNatural History, 67 NY2d 836 [1986]; Cassone v State of New York, 85 AD3d 837 [2011]; Luksch v Blum-Rohl Fishing Corp., 3AD3d 475, 476 [2004]). However, there is no duty to protect or warn against open andobvious conditions that are not inherently dangerous (see Russ v Fried, 73 AD3d 1153 [2010]; Weiss v Half Hollow Hills Cent. SchoolDist., 70 AD3d 932 [2010]; Pipitone v 7-Eleven, Inc., 67 AD3d 879 [2009]; Cupo v Karfunkel, 1 AD3d 48, 52[2003]). The issue of whether a dangerous condition is open and obvious is fact-specific, andusually a question of fact for a jury to resolve (see Shah v Mercy Med. Ctr., 71 AD3d 1120 [2010]). Whether anasserted hazard is open and obvious cannot be divorced from the surrounding circumstances. Acondition that is ordinarily apparent to a person making reasonable use of his or her senses maybe rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted (see Mazzarelli v 54 Plus Realty Corp.,54 AD3d 1008, 1009 [2008]; Mauriello v Port Auth. of N.Y. & N.J., 8 AD3d 200 [2004]).
Under the circumstances, the defendant failed to establish, prima facie, that the allegedcondition which caused the plaintiff to trip and fall was open and obvious (see Gutman v Todt Hill Plaza, LLC, 81AD3d 892, 893 [2011]; Mazzarelliv 54 Plus Realty Corp., 54 AD3d 1008 [2008]). Additionally, the defendant failed tosubmit evidence sufficient to establish, prima facie, that it did not have actual or constructivenotice of the alleged unsafe condition of the subject parking lot (see generally Gordon vAmerican Museum of Natural History, 67 NY2d 836 [1986]). Since the defendant failed tomeet its initial burden as the movant, we need not review the sufficiency of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Accordingly, the defendant's renewed motion for summary judgment dismissing thecomplaint was properly denied. Rivera, J.P., Florio, Leventhal and Roman, JJ., concur.