Opinion
2018–00272 Index No. 613453/15
02-13-2019
Frank ERARIO, Respondent, v. WEN SHIRLEY, LLC, et al., Appellants.
Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn and Alice Spitz of counsel), for appellants. Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Lauren E. Bryant ], of counsel), for respondent.
Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn and Alice Spitz of counsel), for appellants.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Lauren E. Bryant ], of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), entered October 20, 2017. The order denied the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff alleges that on June 21, 2014, as he was walking out of the defendants' Wendy's restaurant, he turned right and struck his head on a black Fire Department key lock box that was affixed to the exterior of the red brick wall of the building. The plaintiff commenced this action against the defendants, alleging negligence in, among other things, the maintenance of their premises. In his pleadings, the plaintiff alleged that the presence and positioning of the lock box on the exterior wall constituted a dangerous condition. After discovery, the defendants moved for summary judgment dismissing the complaint on the ground that the lock box was open and obvious, and not inherently dangerous. The Supreme Court denied the motion, and the defendants appeal.
On their motion for summary judgment, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that the subject condition was both open and obvious, and not inherently dangerous (see Koepke v. Deer Hills Hardware, Inc., 118 A.D.3d 957, 957, 987 N.Y.S.2d 854 ; Mareno v. Shorenstein Realty Servs., L.P., 44 A.D.3d 911, 912, 844 N.Y.S.2d 131 ; Hecht v. 281 Scarsdale Corp., 3 A.D.3d 551, 551–552, 770 N.Y.S.2d 643 ; see also Swan v. Eastman Kodak Co., 16 A.D.3d 1098, 1099, 790 N.Y.S.2d 897 ; Cherry v. Hofstra Univ., 274 A.D.2d 443, 711 N.Y.S.2d 898 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.
AUSTIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.