| Bluth v Bias Yaakov Academy for Girls |
| 2014 NY Slip Op 08800 [123 AD3d 866] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Ellen Bluth, Appellant, v Bias YaakovAcademy for Girls et al., Respondents. |
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Cruser, Mitchell & Novitz, LLP, Farmingdale, N.Y. (Beth S. Gereg andRondiene E. Novitz of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Weiss, J.), dated February 1, 2013, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, a special education teacher employed by a private agency, slipped andfell while helping a student, who was attending the defendant Camp Chevra, run througha sprinkler on premises owned by the defendant Bias Yaakov Academy for Girls.
To establish a prima facie case of negligence, a plaintiff must demonstrate theexistence of duty owed by the defendant to the plaintiff, a breach of that duty, andresulting injury which was proximately caused by the breach (see Solomon v City ofNew York, 66 NY2d 1026, 1027 [1985]; Conneally v Diocese of Rockville Ctr., 116 AD3d 905[2014]; Rubin v Staten Is. Univ.Hosp., 39 AD3d 618 [2007]). While a property owner has a duty to maintain theproperty in a reasonably safe manner (see Basso v Miller, 40 NY2d 233, 241[1976]), the owner has no duty to protect or warn against an open and obvious conditionwhich, as a matter of law, is not inherently dangerous (see Atehortua v Lewin, 90AD3d 794 [2011]; Capozziv Huhne, 14 AD3d 474 [2005]; Cupo v Karfunkel, 1 AD3d 48 [2003]).
The defendants established their prima facie entitlement to judgment as a matter oflaw by demonstrating that the wet condition of the asphalt caused by the sprinkler was anopen and obvious condition which, as a matter of law, was not inherently dangerous (see Atehortua v Lewin, 90AD3d 794 [2011]; Reiss vUlster County Agric. Socy., 78 AD3d 679 [2010]; Espada v Mid-Island Babe RuthLeague, Inc., 50 AD3d 843 [2008]; Ramsey v Mt. Vernon Bd. of Educ., 32 AD3d 1007 [2006];Barbato v Hollow Hills CountryClub, 14 AD3d 522 [2005]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]). The plaintiff's affidavit, whichcontradicted her earlier deposition testimony, merely raised what clearly appear to befeigned issues of fact, and, as such, was [*2]insufficientto defeat summary judgment (see Blochl v RT Long Is. Franchise, LLC, 70 AD3d 993[2010]; Amaya v DenihanOwnership Co., LLC, 30 AD3d 327 [2006]; Joseph v New York Racing Assn., 28 AD3d 105 [2006]; Stancil v Supermarkets Gen.,16 AD3d 402 [2005]). Moreover, the plaintiff's expert's assertions, based on hisinspection of the premises almost four years after the plaintiff's accident, werespeculative, unsupported by the facts in evidence, and insufficient to raise a triable issueof fact (see Grosskopf v 8320Parkway Towers Corp., 88 AD3d 765 [2011]; Houck v Simoes, 85 AD3d967 [2011]; Lal v Ching PoNg, 33 AD3d 668 [2006]; Amaya v Denihan Ownership Co., LLC, 30 AD3d 327[2006]).
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Skelos, J.P., Balkin, Austin and Barros, JJ.,concur.