| Surujnaraine v Valley Stream Cent. High School Dist. |
| 2011 NY Slip Op 07410 [88 AD3d 866] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Ursula Surujnaraine et al., Respondents, v Valley StreamCentral High School District, Appellant. |
—[*1] Mirman, Markovits & Landau, P.C., New York, N.Y. (John V. Mirman of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Nassau County (Woodard, J.), entered January 24, 2011, whichdenied its motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On March 13, 2009, at approximately 10:00 p.m., the plaintiff Ursula Surujnaraine(hereinafter the plaintiff) allegedly was injured after attending a concert at a high school on thedefendant's premises, when she fell over a single-step riser while walking out of the high school'sauditorium. She had never been to the auditorium before the date of the accident. The single-stepriser separated the area of the front entrance to the high school leading to the lobby of theauditorium from the abutting sidewalk. The plaintiff and her husband, suing derivatively,commenced this action to recover damages for personal injuries. In her bill of particulars, theplaintiff alleged, inter alia, that the lighting in the area where she fell was inadequate and that thesingle-step riser was "out of the line of sight" of pedestrians walking from the higher level to thelower level. The defendant moved for summary judgment dismissing the complaint, arguing thatthe condition was open and obvious and not inherently dangerous. The Supreme Court denied themotion, finding that the conflicting expert opinions raised issues of credibility not properlyresolved on a summary judgment motion. We affirm, but on different grounds.
"A property owner has a duty to maintain [its] property in a reasonably safe condition" (Katz v Westchester County HealthcareCorp., 82 AD3d 712, 713 [2011]). "However, a property owner has no duty to protect orwarn against an open and obvious condition, which as a matter of law is not inherentlydangerous" (id.; see Neiderbachv 7-Eleven, Inc., 56 AD3d 632, 633 [2008]; Giambruno v Wilbur F. Breslin Dev. Corp., 56 AD3d 520, 521[2008]; Cupo v Karfunkel, 1 AD3d48, 51 [2003]). "[W]hether a dangerous or defective condition exists on the property ofanother so as to create liability depends on the peculiar facts and circumstances of each case andis generally a question of fact for the jury" (Trincere v County of Suffolk, 90 NY2d 976,977 [1997] [internal quotation marks [*2]omitted]; see Cassone v State of New York, 85AD3d 837, 838-839 [2011]; Gutman v Todt Hill Plaza, LLC, 81 AD3d 892, 892-893 [2011]; Shah v Mercy Med. Ctr., 71 AD3d1120 [2010]; Bolloli v Waldbaum,Inc., 71 AD3d 618, 619 [2010]).
Here, the defendant failed to establish, prima facie, that the alleged condition that caused theplaintiff to trip and fall was open and obvious and not inherently dangerous (see Katz vWestchester County Healthcare Corp., 82 AD3d at 713; Kempter v Horton, 33 AD3d 868, 869 [2006]; Shalamayeva v Park 83rd St. Corp., 32AD3d 387, 388 [2006]; Miner vNorthport Yacht Club, 15 AD3d 362, 363 [2005]; Scher v Stropoli, 7 AD3d 777 [2004]; cf. Roros v Oliva, 54 AD3d 398,399-400 [2008]). Since the defendant did not meet its initial burden of establishing its primafacie entitlement to judgment as a matter of law, we need not address the sufficiency of theplaintiffs' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint. Angiolillo, J.P., Dickerson, Chambers and Lott, JJ., concur.