Opinion
2017–10498 Index No. 605777/14
03-06-2019
Howard KASTIN, et al., Appellants, v. OHR MOSHE TORAH INSTITUTE, INC., Respondent, et al., Defendant.
Edelman, Krasin & Jaye, PLLC, Westbury, N.Y. (Kara M. Rosen of counsel), for appellants. Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Ondine Slone and Gabriella Campiglia of counsel), for respondent.
Edelman, Krasin & Jaye, PLLC, Westbury, N.Y. (Kara M. Rosen of counsel), for appellants.
Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Ondine Slone and Gabriella Campiglia of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDERORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Ohr Moshe Torah Institute, Inc., for summary judgment dismissing the amended complaint insofar as asserted against it is denied.
On September 1, 2014, at approximately 12:15 p.m., the plaintiff Howard Kastin (hereinafter the injured plaintiff) allegedly fell into a three-foot-deep hole adjacent to a fence post which was being installed as part of a new fencing system on premises owned by the defendant Ohr Moshe Torah Institute, Inc. (hereinafter the defendant). The plaintiff, and his wife suing derivatively, subsequently commenced this action to recover damages, among other things, for personal injuries. After joinder of issue, the defendant moved for summary judgment dismissing the amended complaint insofar as asserted against it on the ground, among others, that the hole in which the injured plaintiff fell was open and obvious, and not inherently dangerous. The Supreme Court granted the motion, and the plaintiffs appeal.
"A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" ( Genefar v. Great Neck Park Dist., 156 A.D.3d 762, 763, 67 N.Y.S.3d 262 [internal quotation marks omitted]; Mossberg v. Crow's Nest Mar. of Oceanside, 129 A.D.3d 683, 683, 10 N.Y.S.3d 319 [internal quotation marks omitted]; see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). A property owner has no duty to protect or warn against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous (see Graffino v. City of New York, 162 A.D.3d 990, 991, 80 N.Y.S.3d 444 ; Genefar v. Great Neck Park Dist., 156 A.D.3d at 762, 67 N.Y.S.3d 262 ; Davidoff v. First Dev. Corp., 148 A.D.3d 773, 48 N.Y.S.3d 755 ; Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40 ). "The issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question," but "a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion ... on the basis of clear and undisputed evidence" ( Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 [citation omitted] ). Further, the law is clear that "[e]vidence that the dangerous condition was open and obvious cannot relieve the landowner" of the burden to exercise reasonable care in maintaining the property in a safe condition ( Cupo v. Karfunkel, 1 A.D.3d at 52, 767 N.Y.S.2d 40 ).
In this case, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. The defendant's submissions did not demonstrate, prima facie, that the hole was not inherently dangerous. No evidence was submitted that the hole was too small to create an inherently dangerous condition (see Rice v. University of Rochester Med. Ctr., 55 A.D.3d 1325, 1327, 865 N.Y.S.2d 463 ). Even if the condition were open and obviousand it is by no means clear that it was—that would relate to the issue of comparative fault, and not absolve the landowner of all fault (see Farrugia v. 1440 Broadway Assoc., 163 A.D.3d 452, 454, 82 N.Y.S.3d 1 ; Rice v. University of Rochester Med. Ctr., 55 A.D.3d at 1327, 865 N.Y.S.2d 463 ; Cucuzza v. City of New York, 2 A.D.3d 389, 767 N.Y.S.2d 853 ).
Photographs of the site indicate that the hole was in a grassy area, and the depth of the hole was not apparent. The defendant's witness testified at his deposition that the construction area had been marked with yellow hazard tape which was removed the day before the accident because the cement work had been completed. However, the defendant's witness also testified that the entire project had not yet been completed.
The defendant's remaining contentions are without merit (see Custodi v. Town of Amherst, 20 N.Y.3d 83, 87, 957 N.Y.S.2d 268, 980 N.E.2d 933 ).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against it.
RIVERA, J.P., CHAMBERS, HINDS–RADIX and MALTESE, JJ., concur.