| Iwelu v New York City Tr. Auth. |
| 2011 NY Slip Op 09094 [90 AD3d 712] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Mimi Iwelu, Respondent, v New York City TransitAuthority, Appellant, et al., Defendant. |
—[*1] Lipsig, Shapey, Manus & Moverman, P.C., New York, N.Y. (Berson & Budashewitz, LLP[Jeffrey A. Berson], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant New York City TransitAuthority appeals from an order of the Supreme Court, Kings County (Velasquez, J.), datedOctober 5, 2010, which denied its motion for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantNew York City Transit Authority for summary judgment dismissing the complaint insofar asasserted against it is granted.
On March 30, 2006, the plaintiff allegedly tripped while ascending the steps of theClinton/Washington subway station in Brooklyn. The plaintiff commenced this action against,among others, the New York City Transit Authority (hereinafter the Transit Authority), allegingthat the bottom step of the stairway was unsafe because there was an opening in the riser of thestep. The Transit Authority moved for summary judgment dismissing the complaint insofar asasserted against it, contending, among other things, that the condition was readily observable bythe reasonable use of one's senses and was not inherently dangerous. The plaintiff opposed themotion, contending that there were triable issues of fact as to whether the partially open riserconstituted an inherently dangerous condition. The plaintiff also asserted that the stairway wasdimly lit. The Supreme Court denied the motion. We reverse.
A landowner has a duty to maintain his or her premises in a reasonably safe manner (seeBasso v Miller, 40 NY2d 233, 241 [1976]). However, he or she has no duty to protect orwarn against an open and obvious condition, which as a matter of law is not inherently dangerous(see Cupo v Karfunkel, 1 AD3d48, 52 [2003]).
Here, the Transit Authority established, prima facie, its entitlement to judgment as a matterof law by submitting evidence, inter alia, in the form of expert affidavits and photographs of theaccident scene, showing that the aspect of the riser which allegedly caused the plaintiff to fallwas readily observable by the reasonable use of one's senses and was not inherently dangerous(see [*2]Russ v Fried, 73 AD3d 1153, 1154 [2010]; Pipitone v 7-Eleven, Inc., 67 AD3d879, 880 [2009]; Harris v APWSupermarkets, Inc., 63 AD3d 1000, 1001 [2009]; Espada v Mid-Island Babe Ruth League, Inc., 50 AD3d 843 [2008];Tenenbaum v Best 21 Ltd., 15AD3d 646 [2005]; Mansueto vWorster, 1 AD3d 412, 413 [2003]).
Contrary to the plaintiff's contention, her deposition testimony was insufficient to raise atriable issue of fact as to whether a lighting condition was a proximate cause of the accident (see Outlaw v Citibank, N.A., 35 AD3d564 [2006]; Leib v Silo Rest.,Inc., 26 AD3d 359, 360 [2006]; Gordon v New York City Tr. Auth., 267 AD2d201, 202 [1999]; Curran v Esposito, 308 AD2d 428, 429 [2003]). Furthermore, theplaintiff's expert's affidavit was conclusory and insufficient to raise a triable issue of fact as towhether the partially open riser constituted an inherently dangerous condition (see Losciuto v City Univ. of N.Y., 80AD3d 576, 577 [2011]; Grob vKings Realty Assoc., 4 AD3d 394, 395 [2004]). Accordingly, the Supreme Court shouldhave granted the Transit Authority's motion for summary judgment dismissing the complaintinsofar as asserted against it. Angiolillo, J.P., Dickerson, Lott and Miller, JJ., concur.