Opinion
2020–07975 Index No. 620751/18
09-13-2023
Marcia FERRUZZI, respondent, v. VILLAGE OF SALTAIRE, appellant, et al., defendant.
Gerber Ciano Kelly Brady LLP, Garden City, NY (Brendan T. Fitzpatrick, Brian W. McElhenny, and Jamie Prisco of counsel), for appellant. The Rizzuto Law Firm, Uniondale, NY (Kristen N. Reed of counsel), for respondent.
Gerber Ciano Kelly Brady LLP, Garden City, NY (Brendan T. Fitzpatrick, Brian W. McElhenny, and Jamie Prisco of counsel), for appellant.
The Rizzuto Law Firm, Uniondale, NY (Kristen N. Reed of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, BARRY E. WARHIT, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Village of Saltaire appeals from an order of the Supreme Court, Suffolk County (George Nolan, J.), dated September 24, 2020. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Village of Saltaire for summary judgment dismissing the complaint insofar as asserted against it is granted. The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she rode a bicycle off an elevated boardwalk located in the defendant Village of Saltaire and fell to the ground below. The boardwalk, which was reconstructed between 2014 and 2015 in the wake of Hurricane Sandy, runs north to south from the bay to the ocean, and is approximately 2,100 feet long and 14 feet wide. Mario Posillico, the Village administrator and Village clerk, testified at his deposition that the boardwalk was constructed level, but the height differential between the boardwalk and the ground varied approximately 10 to 23 inches in certain locations due to the terrain. There are no guardrails along the sides of the boardwalk.
The plaintiff testified at her deposition that, on the date of the accident, she and her then-boyfriend were riding bicycles on the boardwalk. The plaintiff knew the boardwalk was elevated and the visibility that day was clear. The plaintiff and her boyfriend eventually came upon a firehouse, where they stopped so that the plaintiff's boyfriend could put air in the tires of his bicycle. The plaintiff and her boyfriend then continued riding their bicycles along the boardwalk. A few minutes later, the plaintiff rode her bicycle off the boardwalk. The plaintiff explained that, as she was riding her bicycle, she was periodically looking to see if there was anyone next to her and, after glancing to her left, "the next thing I know I was going straight off." The plaintiff testified that, from the area of the firehouse to the location of the accident, the boardwalk was level and her bicycle did not hit anything that caused her to ride off the boardwalk.
The Village moved for summary judgment dismissing the complaint insofar as asserted against it, contending, among other things, that the condition of the boardwalk was open and obvious, and not inherently dangerous. In an order dated September 24, 2020, the Supreme Court, inter alia, denied the Village's motion, and the Village appeals.
A landowner has a duty to maintain its premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Robbins v. 237 Ave. X, LLC, 177 A.D.3d 799, 113 N.Y.S.3d 235 ). However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous (see Masker v. Smith, 188 A.D.3d 867, 868, 135 N.Y.S.3d 135 ; Swinney v. Nassau County, 179 A.D.3d 731, 113 N.Y.S.3d 595 ). "[T]o obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous" ( Masker v. Smith, 188 A.D.3d at 868, 135 N.Y.S.3d 135 ; see Karpel v. National Grid Generation, LLC, 174 A.D.3d 695, 696, 106 N.Y.S.3d 99 ).
Here, the evidence submitted by the Village in support of its motion, including a transcript of the plaintiff's deposition testimony and photographs of the accident site, demonstrated, prima facie, that the condition of the elevated boardwalk was both open and obvious, and not inherently dangerous. The plaintiff's testimony established, inter alia, that she was aware of the condition of the boardwalk, including that it was elevated, and that she had ridden her bicycle along the boardwalk without incident shortly prior to her accident (see Masker v. Smith, 188 A.D.3d at 868, 135 N.Y.S.3d 135 ; Mucciariello v. A & D Hylan Blvd. Assoc., LLC, 133 A.D.3d 726, 727, 19 N.Y.S.3d 574 ; Tenenbaum v. Best 21 Ltd., 15 A.D.3d 646, 790 N.Y.S.2d 236 ). In opposition, the plaintiff failed to raise a triable issue of fact. The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the Supreme Court should have granted the Village's motion for summary judgment dismissing the complaint insofar as asserted against it.
BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and VOUTSINAS, JJ., concur.