Opinion
2014-04-9
Aphrodite SCALICE, appellant, v. Clifford BRAISTED, Jr., respondent.
Borrell & Riso, LLP, Staten Island, N.Y. (John Riso of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (Joshua H. Stern of counsel), for respondent.
Borrell & Riso, LLP, Staten Island, N.Y. (John Riso of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (Joshua H. Stern of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated May 15, 2012, which granted the defendant's motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when she slipped and fell on the back steps of the defendant's residence. The plaintiff testified that, prior to her fall, she felt a “hard cone” or “ball” underneath her foot. After her fall, she observed a crushed seed ball, about the size of a golf ball, on the step. Two or three other seed balls and some leaves were scattered about the steps and landing. The seed balls and leaves apparently had fallen from a nearby tree belonging to the defendant's neighbor.
The defendant made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous ( see Verdejo v. New York City Hous. Auth., 105 A.D.3d 450, 963 N.Y.S.2d 78;Zegarelli v. Dundon, 102 A.D.3d 958, 958 N.Y.S.2d 302;Brown v. Melville Indus. Assoc., 34 A.D.3d 611, 823 N.Y.S.2d 697;Misir v. Beach Haven Apt. No. 1, Inc., 32 A.D.3d 1002, 820 N.Y.S.2d 892;DeLaurentis v. Marx Realty & Improvement, 300 A.D.2d 343, 752 N.Y.S.2d 349;Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment on the issue of liability. MASTRO, J.P., BALKIN, MILLER and LASALLE, JJ., concur.