Opinion
2002-03699
Submitted September 18, 2002.
October 7, 2002.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated April 9, 2002, which denied their motion for summary judgment dismissing the complaint.
Robert P. Tusa (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants.
Leav Steinberg, LLP, New York, N.Y. (Elizabeth Mark Meyerson of counsel), for respondents.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
While an owner or occupier of land owes a duty of reasonable care to maintain his or her property in a safe condition (see Basso v. Miller, 40 N.Y.2d 233), there is no duty to protect or warn against an open and obvious danger, particularly where the plaintiff was actually aware of the condition (see Tagle v. Jakob, 97 N.Y.2d 165, 169; Germain v. Hegedus, 289 A.D.2d 443; Bojovic v. New York City Hous. Auth., 284 A.D.2d 356, 357; Gonzalez v. Fastflex, Inc., 270 A.D.2d 229; Tarrazi v. 2025 Richmond Ave. Assocs., 260 A.D.2d 468, 469). The defendants established that the injured plaintiff was aware of the unlit deck in their back yard and opened the sliding door and exited onto the deck before the defendants had an opportunity to illuminate it (see Tarrazi v. 2025 Richmond Ave. Assocs., supra). Under these circumstances, the defendants had no duty to protect or warn the injured plaintiff from the hazard. Accordingly, the defendants' motion for summary judgment should have been granted.
FEUERSTEIN, J.P., KRAUSMAN, LUCIANO, TOWNES and COZIER, JJ., concur.