| Conneally v Diocese of Rockville Ctr. |
| 2014 NY Slip Op 02741 [116 AD3d 905] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Catherine Ann Conneally, Respondent, v Dioceseof Rockville Centre, Defendant, and St. Agnes Roman Catholic Church et al.,Appellants. |
—[*1] Feldman, Kramer & Monaco, P.C. (Joshua Annenberg, New York, N.Y., of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants St. AgnesRoman Catholic Church and St. Agnes Roman Catholic Church at Rockville Centreappeal from an order of the Supreme Court, Nassau County (Marber, J.), dated August15, 2012, which denied their motion for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the order is affirmed, with costs.
At about 9:00 p.m. on August 20, 2009, the then-75-year-old plaintiff allegedlytripped and fell due to an elevation differential between the outdoor plaza area ofpremises owned by the defendants St. Agnes Roman Catholic Church and St. AgnesRoman Catholic Church at Rockville Centre (hereinafter together the St. Agnesdefendants) and the abutting sidewalk below it, sustaining personal injuries. Theplaintiff, who had just attended a concert at the St. Agnes defendants' cathedral, allegedthat she did not see the difference in height between the plaza area and the abuttingsidewalk because the area was inadequately lit.
"To establish a prima facie case of negligence, a plaintiff must establish the existenceof a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breachwas a proximate cause of injury to the plaintiff" (Alvino v Lin, 300 AD2d 421,421 [2002]; see Rubin v StatenIs. Univ. Hosp., 39 AD3d 618 [2007]; Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565[2005]). A property owner has a duty to maintain his property in a reasonably safemanner (see Basso v Miller, 40 NY2d 233, 234 [1976]). However, a propertyowner has no duty to protect or warn against an open and obvious condition, which, as amatter of law, is not inherently dangerous (see Nelson v 40-01 N. Blvd. Corp., 95 AD3d 851 [2012];Tyz v First St. Holding Co.,Inc., 78 AD3d 818 [2010]; Weiss v Half Hollow Hills Cent. School Dist., 70 AD3d932 [2010]). "Absent a hazardous condition or other circumstance giving rise to anobligation to provide exterior lighting for a particular area, landowners are generally notrequired 'to illuminate their property during all hours of darkness' " (Miller v Consolidated RailCorp., 9 NY3d 973, 974 [2007], quoting Peralta v Henriquez, 100NY2d 139, 145 [2003]; Taylor v Lands End Realty Corp., 93 [*2]AD3d 1062, 1064 [2012]; see Solan v Great Neck Union FreeSchool Dist., 43 AD3d 1035 [2007]). "A landowner whose property is open tothe public is charged with the duty of providing safe means of ingress and egress, whichincludes a duty to provide adequate lighting" (Shirman v New York City Tr.Auth., 264 AD2d 832, 833 [1999]; see Gallagher v St. Raymond's R. C.Church, 21 NY2d 554 [1968]; Tarrazi v 2025 Richmond Ave. Assoc., 296AD2d 542, 544 [2002]).
Here, the St. Agnes defendants failed to establish, prima facie, that they did notbreach their duty to maintain their premises in a reasonably safe condition. Viewing theevidence in the light most favorable to the plaintiff (see Pearson v Dix McBride, LLC, 63 AD3d 895 [2009]), atriable issue of fact exists as to whether the St. Agnes defendants breached their duty toadequately illuminate the area where the accident occurred, and whether their allegedfailure to adequately illuminate the area proximately caused the accident (see Hadgraft v Morin, 94AD3d 701 [2012]; Surujnaraine v Valley Stream Cent. High School Dist., 88AD3d 866 [2011]; Miner vNorthport Yacht Club, 15 AD3d 362 [2005]; Streit v DTUT, 302 AD2d450 [2003]). The conclusion of the St. Agnes defendants' expert, that the lightingcondition was adequate at the time of the accident, was speculative, since he inspectedthe area where the accident occurred more than two years after the accident and he failedto show that when he tested the lighting condition, it was the same as it was at the time ofthe accident (see Burgos vMontemurro Enters. LLC, 102 AD3d 629, 630 [2013]; Gilson v Metropolitan Opera,15 AD3d 55, 59 [2005], affd 5 NY3d 574 [2005]). Since the St. Agnesdefendants failed to meet their initial burden as the movants, it is not necessary to reviewthe sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851 [1985]). Accordingly, the Supreme Court properly deniedthe St. Agnes defendants' motion for summary judgment dismissing the complaint insofaras asserted against them. Balkin, J.P., Sgroi, Cohen and LaSalle, JJ., concur.