Opinion
2011-10-11
Emory NESBITT, et al., appellants,v.TOWN OF POUGHKEEPSIE, respondent.
Finkelstein & Partners, LLP, Newburgh, N.Y. (Lawrence D. Lissauer of counsel), for appellants.McCabe & Mack LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated August 20, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint. “A landowner has a duty to maintain its premises in a reasonably safe manner” ( Capasso v. Village of Goshen, 84 A.D.3d 998, 999, 922 N.Y.S.2d 567 [internal quotation marks omitted]; see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868; Russ v. Fried, 73 A.D.3d 1153, 1154, 901 N.Y.S.2d 703). “However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” ( Capasso v. Village of Goshen, 84 A.D.3d at 999, 922 N.Y.S.2d 567 [internal quotation marks omitted]; see Russ v. Fried, 73 A.D.3d at 1154, 901 N.Y.S.2d 703; Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40). “Although the question of whether a condition is hidden or open and obvious is generally for the finder of fact to determine, the court may determine that a risk is open and obvious as a matter of law where clear and undisputed evidence compels such a conclusion” ( Capasso v. Village of Goshen, 84 A.D.3d at 999, 922 N.Y.S.2d 567; see Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107; cf. Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40; Gibbons v. Lido & Point Lookout Fire Dist., 293 A.D.2d 646, 740 N.Y.S.2d 440).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence to demonstrate that, under the circumstances of this case, the condition complained of was not inherently dangerous and was readily observable by the reasonable use of one's senses ( see Capasso v. Village of Goshen, 84 A.D.3d at 999–1000, 922 N.Y.S.2d 567). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
ANGIOLILLO, J.P., DICKERSON, CHAMBERS and LOTT, JJ., concur.