Opinion
12874 Index No. 153879/17 Case No. 2020-02960
01-14-2021
Adam CHRIN, Plaintiff–Respondent, v. GATE OF HEAVEN CEMETERY et al., Defendants–Appellants.
Leahey & Johnson, P.C., New York (Christopher Delamere Clarke of counsel), for appellants. Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for respondent.
Leahey & Johnson, P.C., New York (Christopher Delamere Clarke of counsel), for appellants.
Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Kapnick, Singh, Mendez, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered March 9, 2020, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff testified that he was walking on a grassy hill on defendants' cemetery grounds when his foot became stuck in a hole, and his ankle broke. Defendants failed to establish prima facie either that they did not have constructive notice of the hole (see Barrett v. Aero Snow Removal Corp., 167 A.D.3d 519, 90 N.Y.S.3d 161 [1st Dept. 2018] ) or that the hole was open and obvious and not inherently dangerous (see Keech v. 30 E. 85th St. Co., 173 A.D.3d 645, 103 N.Y.S.3d 81 [1st Dept. 2019] ).
With respect to constructive notice, the cemetery superintendent's testimony about inspections of the premises failed to show when the location around the hole was last checked before plaintiff's accident (see Savio v. St. Raymond Cemetery, 160 A.D.3d 602, 603, 75 N.Y.S.3d 11 [1st Dept. 2018] ). Nor did defendants establish on this motion that the hole was a naturally occurring topographic condition and that they could not have been expected to remedy it (see Weisberg v. Town of Wallkill Boys & Girls Club, Inc., 126 A.D.3d 787, 2 N.Y.S.3d 802 [2d Dept. 2015] ).
With respect to whether the hole was open and obvious and not inherently dangerous, it is not dispositive whether plaintiff was able to see the condition before the accident occurred (see e.g. Farrugia v. 1440 Broadway Assoc., 163 A.D.3d 452, 453–455, 82 N.Y.S.3d 1 [1st Dept. 2018] ; see also id. at 457, 82 N.Y.S.3d 1 [Andrias, J., dissenting in part], appeal withdrawn 32 N.Y.3d 1168, 97 N.Y.S.3d 642, 121 N.E.3d 270 [2019] ).
Although defendants' failure to make their prima facie showing obviates the need to evaluate plaintiff's opposition, we note that with respect to constructive notice plaintiff testified that he had seen the same hole the week before. Any inconsistencies in his testimony merely present issues of fact as to his credibility (see Cuevas v. City of New York, 32 A.D.3d 372, 373, 821 N.Y.S.2d 37 [1st Dept. 2006] ).
The court providently exercised its discretion in considering plaintiff's untimely opposition papers, as there was no showing of prejudice, and defendants submitted a reply affirmation addressing plaintiff's arguments on the merits (see Serradilla v. Lords Corp., 117 A.D.3d 648, 649, 987 N.Y.S.2d 320 [1st Dept. 2014] ).
We have considered defendants' remaining arguments and find them unavailing.