Opinion
No. 2020-03556 Index No. 604962/18
12-07-2022
Steven Lore, appellant, v. Fitness International, LLC, etc., respondent.
The Bongiorno Law Firm, PLLC (John Miras and Edelstein & Grossman, New York, NY [Jonathan Edelstein], of counsel), for appellant. Lawrence, Worden, Rainis & Bard, P.C., Melville, NY (Leslie McHugh of counsel), for respondent.
The Bongiorno Law Firm, PLLC (John Miras and Edelstein & Grossman, New York, NY [Jonathan Edelstein], of counsel), for appellant.
Lawrence, Worden, Rainis & Bard, P.C., Melville, NY (Leslie McHugh of counsel), for respondent.
COLLEEN D. DUFFY, J.P. LINDA CHRISTOPHER DEBORAH A. DOWLING BARRY E. WARHIT, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), dated April 14, 2020. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On February 8, 2016, the plaintiff allegedly tripped and fell on a tiled single-step riser while entering a shower stall in the locker room at the defendant's fitness club. The single-step riser was approximately 4½ inches high and was tiled in the same color and pattern as the floor tiles which bordered the top and bottom of the step. Following discovery, the defendant moved for summary judgment dismissing the complaint, contending, inter alia, in effect, that the single-step riser was open and obvious and not inherently dangerous. In opposition, the plaintiff argued, among other things, that the single-step riser was obscured by poor lighting conditions. In an order dated April 14, 2020, the Supreme Court granted the defendant's motion on the ground that the single-step riser was open and obvious and not inherently dangerous. The plaintiff appeals. We reverse.
A possessor of real property has a duty to maintain that property in a reasonably safe condition (see Basso v Miller, 40 N.Y.2d 233, 241). "However, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous" (Robbins v 237 Ave. X, LLC, 177 A.D.3d 799, 799; see Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d 776, 776). "[T]he issue of '[w]hether a hazard is open and obvious cannot be divorced from the surrounding circumstances'" (Sebagh v Capital Fitness, Inc., 202 A.D.3d 853, 855, quoting Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; see Kernell v Five Dwarfs, Inc., 207 A.D.3d 622). In addition, "whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for the jury" (Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; see Liriano v Hobart Corp., 92 N.Y.2d 232, 242).
Here, contrary to the Supreme Court's determination, the defendant failed to establish, prima facie, that the single-step riser was open and obvious and not inherently dangerous under the surrounding circumstances, including the lighting conditions at the time of the accident (see Simon v Comsewogue Sch. Dist., 143 A.D.3d 695, 696; Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; Clark v AMF Bowling Ctrs., Inc., 83 A.D.3d 761, 762). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, it is not necessary to review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
DUFFY, J.P., CHRISTOPHER, DOWLING and WARHIT, JJ., concur.