| Harris v 11 W. 42 Realty Invs., LLC |
| 2012 NY Slip Op 06282 [98 AD3d 1084] |
| September 26, 2012 |
| Appellate Division, Second Department |
| Shaunty Harris, Respondent-Appellant, v 11 West 42Realty Investors, LLC, et al., Respondents, and Breakaway Courier Systems,Appellant-Respondent. (And a Third-Party Action.) |
—[*1] Frekhtman & Associates, Brooklyn, N.Y. (Andrew Green of counsel), forrespondent-appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), fordefendants-respondents.
In an action to recover damages for personal injuries, the defendant Breakaway CourierSystems appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Schmidt, J.), dated February 18, 2011, as denied its motion for summary judgmentdismissing the amended complaint insofar as asserted against it and granted that branch of themotion of the defendants 11 West 42 Realty Investors, LLC, and Tishman Speyer Properties, LP,which was for summary judgment dismissing the cross claims asserted against them, and theplaintiff cross-appeals from the same order.
Ordered that the cross appeal by the plaintiff is dismissed as abandoned; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff and the defendants 11 West 42Realty Investors, LLC, and Tishman Speyer Properties, LP, appearing separately and filingseparate briefs, payable by Breakaway Courier Systems.
The Supreme Court properly denied the motion of the defendant Breakaway Courier Systems(hereinafter Breakaway) for summary judgment dismissing the amended complaint insofar asasserted against it. In support of its motion, Breakaway argued that the alleged condition whichcaused the plaintiff to trip and fall was open and obvious and not inherently dangerous. However,Breakaway's own submissions demonstrated the existence of a triable issue of fact. A conditionthat is ordinarily apparent to a person making reasonable use of his or her senses may be rendereda trap for the unwary where the condition is obscured or the plaintiff is distracted (see Acevedo v New York City Tr.Auth., 97 AD3d 515 [2012]; Cassone v State of New York, 85 AD3d 837 [2011]; Shah vMercy Med. Ctr., [*2]71 AD3d 1120 [2010]). In addition, theevidence submitted by Breakaway failed to establish that any negligence on the part of theplaintiff was the sole proximate cause of the plaintiff's accident. Since Breakaway did not meetits initial burden as the movant, the burden never shifted to the plaintiff to submit evidencesufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851 [1985]).
Further, the Supreme Court properly determined that the defendants 11 West 42 RealtyInvestors, LLC, and Tishman Speyer Properties, LP (hereinafter the property owners), establishedtheir prima facie entitlement to judgment as a matter of law dismissing the cross claims assertedagainst them. In opposition, Breakaway failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly denied Breakaway's motion for summary judgmentdismissing the amended complaint insofar as asserted against it and granted that branch of theproperty owners' motion which was for summary judgment dismissing the cross claims assertedagainst them. Angiolillo, J.P., Dickerson, Leventhal and Miller, JJ., concur.