| Robles v Bruhns |
| 2012 NY Slip Op 07096 [99 AD3d 980] |
| October 24, 2012 |
| Appellate Division, Second Department |
| Nora Robles, Respondent, v David Bruhns, Doing Businessas Wood Brook Landscaping, Appellant-Respondent, et al., Defendants, and Board of Managersof Fairview Artist Lake Condominium I, Respondent-Appellant. |
—[*1] Vincent D. McNamara, East Norwich, N.Y., for respondent-appellant. Steven R. Smith, Garden City, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant David Bruhns, doingbusiness as Wood Brook Landscaping, appeals from so much of an order of the Supreme Court,Suffolk County (Pastoressa, J.), dated June 14, 2011, as denied his motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against him, and thedefendant Board of Managers of Fairview Artist Lake Condominium I cross-appeals, as limitedby its brief, from so much of the same order as denied its cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, or, in the alternative,for summary judgment on so much of its cross claim as sought common-law indemnificationfrom the defendant David Bruhns, doing business as Wood Brook Landscaping.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs to the plaintiff.
The defendant David Bruhns, doing business as Wood Brook Landscaping (hereinafterWood Brook), removed several bushes from a grass-covered island, located in the middle of aparking lot in a condominium community known as Fairview Artist Lake Condominium I,pursuant to a verbal agreement with the board of managers of the condominium (hereinafter theBoard). In removing the bushes, Wood Brook left stumps, measuring approximately four incheshigh, in the grass-covered island. Approximately two years later, the plaintiff, a resident of thecondominium, walked across the subject island, and tripped and fell on one of the stumps,sustaining injuries.
The plaintiff commenced this action to recover damages for personal injuries against, amongothers, Wood Brook and the Board. Wood Brook moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it, and the Board cross-moved forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it or,[*2]in the alternative, for summary judgment on so much of itscross claim as sought common-law indemnification from Wood Brook. The Supreme Courtdenied the motion and cross motion.
Wood Brook failed to demonstrate its prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against it on the ground that it owed no duty to theplaintiff. Although the plaintiff alleged in the complaint and bill of particulars that Wood Brookcreated a dangerous condition by leaving the stumps from the bushes in the grass-covered island(see Foster v Herbert Slepoy Corp.,76 AD3d 210, 214 [2010]), Wood Brook failed to eliminate triable issues of fact as towhether, in allegedly failing to exercise reasonable care as to the removal of the bushes, itlaunched a force or instrument of harm, and thereby potentially subjected itself to liability to theplaintiff (see Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002]; Martin v Huang, 85 AD3d 1132,1133 [2011]; Collins v J.P. MorganChase & Co., 72 AD3d 729, 730 [2010]).
As to the Board's cross motion, while a landowner has a duty to maintain its premises in areasonably safe manner (see Basso v Miller, 40 NY2d 233 [1976]), a landowner has noduty to protect or warn against open and obvious conditions that are not inherently dangerous (see King v 230 Park Owners Corp., 95AD3d 1079 [2012]; Weiss v HalfHollow Hills Cent. School Dist., 70 AD3d 932 [2010]; Bretts v Lincoln Plaza Assoc., Inc., 67AD3d 943 [2009]). Here, although the Board argued that the stumps were open and obviousand were not inherently dangerous, it failed to establish its prima facie entitlement to judgment asa matter of law dismissing the complaint insofar as asserted against it on that ground (see King v 230 Park Owners Corp., 95AD3d 1079 [2012]; Bretts vLincoln Plaza Assoc., Inc., 67 AD3d 943 [2009]).
The Board was not entitled to summary judgment on its cross claim for common-lawindemnification against Wood Brook because it failed to satisfy its prima facie burden ofestablishing that it was not negligent (see Fritz v Sports Auth., 91 AD3d 712 [2012]; George v Marshalls of MA, Inc., 61AD3d 925 [2009]).
Wood Brook's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the motion and cross motion for summaryjudgment. Eng, P.J., Skelos, Lott and Cohen, JJ., concur. [Prior Case History: 31 Misc 3d1219(A), 2011 NY Slip Op 50733(U).]