Opinion
Nos. 2022-06949 2023-01092 Index No. 612785/18
01-31-2024
D. S., etc., et al., appellants, v. Sachem Central School District, respondent.
Bergman Bergman Fields & Lamonsoff, LLP, Hicksville, NY (Michael E. Bergman, Julie T. Mark, and Clifford D. Gabel of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Uniondale, NY (Kathleen D. Foley of counsel), for respondent.
Bergman Bergman Fields & Lamonsoff, LLP, Hicksville, NY (Michael E. Bergman, Julie T. Mark, and Clifford D. Gabel of counsel), for appellants.
Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Uniondale, NY (Kathleen D. Foley of counsel), for respondent.
JOSEPH J. MALTESE, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated August 1, 2022, and (2) a judgment of the same court entered September 6, 2022. The order granted the defendant's motion for summary judgment dismissing the complaint. The judgment, upon the order, is in favor of the defendant and against the plaintiffs dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the defendant.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
The infant plaintiff was walking on a grass field on the defendant's premises during recess when he slipped and fell. The infant plaintiff, by his mother and natural guardian, and his mother suing derivatively, thereafter commenced this action against the defendant, inter alia, to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion in an order dated August 1, 2022. A judgment was subsequently entered upon the order in favor of the defendant and against the plaintiffs dismissing the complaint. The plaintiffs appeal.
"An owner of land has a duty to maintain [its] property in a reasonably safe condition" (Flores v Harvest Moon Farm & Orchard, 206 A.D.3d 623, 624; see Locke v Calamit, 175 A.D.3d 560, 561). "However, there is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one's senses" (Luttenberger v McManus-Lorey Funeral Home, Ltd., 200 A.D.3d 671, 671 [internal quotation marks omitted]; see Locke v Calamit, 175 A.D.3d at 561). Furthermore, a landowner "will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it" (Torres v State of New York, 18 A.D.3d 739, 739; see Miano v Rite Aid Hdqtrs. Corp., 160 A.D.3d 713).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by showing that the allegedly hazardous condition was open and obvious, not inherently dangerous, and incidental to the nature of the grass field (see Flores v Harvest Moon Farm & Orchard, 206 A.D.3d at 624; Sirianni v Town of Oyster Bay, 156 A.D.3d 739, 740; Bernal v 521 Park Ave. Condo, 128 A.D.3d 750, 750). Moreover, the defendant demonstrated that the allegedly hazardous condition was not obscured by grass or debris, that the infant plaintiff was not distracted (see Gerner v Shop-Rite of Uniondale, Inc., 148 A.D.3d 1122, 1123; Julianne Oldham-Powers v Longwood Cent. Sch. Dist., 123 A.D.3d 681, 682), and that it maintained the premises in a reasonably safe condition (see Shuttleworth v Saint Margaret's R.C. Church in Middle Vil., 209 A.D.3d 786, 787).
In opposition, the plaintiffs failed to raise a triable issue of fact. In particular, the affidavit of the plaintiffs' expert failed to set forth any violations of applicable codes or industry-wide standards, explain how he reached his conclusions (see Lorenzo v Garley, 190 A.D.3d 847, 848; Toes v National Amusements, Inc., 94 A.D.3d 742, 743), or set forth how the allegedly hazardous condition constituted a "trap for the unwary" (Gerner v Shop-Rite of Uniondale, Inc., 148 A.D.3d at 1123 [internal quotation marks omitted]; see Julianne Oldham-Powers v Longwood Cent. Sch. Dist., 123 A.D.3d at 682). In addition, the infant plaintiff's deposition testimony that he slipped on a grate that was depressed in the ground and covered with mud, leaves, and grass contradicted the testimony that the infant plaintiff gave during an earlier hearing pursuant to General Municipal Law § 50-h that he slipped in a puddle and landed on a grate. The infant plaintiff's deposition testimony was insufficient to raise a triable issue of fact because it presented feigned issues of fact as to the nature of the alleged hazard (see Ventura v County of Nassau, 175 A.D.3d 620, 621; Johnson v Braun, 120 A.D.3d 765, 766).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
In light of our determination, we need not reach the parties' remaining contentions.
MALTESE, J.P., CHRISTOPHER, DOWLING and LOVE, JJ., concur.