Opinion
10-05-2016
Courtney SIMON, etc., respondent, v. COMSEWOGUE SCHOOL DISTRICT, appellant.
Devitt Spellman Barrett, LLP, Smithtown, NY (John M. Denby of counsel), for appellant. Rappaport Glass, Levine & Zullo, LLP, Islandia, NY (Anne Marie Caradonna and Michael Levine of counsel), for respondent.
Devitt Spellman Barrett, LLP, Smithtown, NY (John M. Denby of counsel), for appellant.
Rappaport Glass, Levine & Zullo, LLP, Islandia, NY (Anne Marie Caradonna and Michael Levine of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated September 8, 2015, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On October 8, 2010, at around dusk, the plaintiff allegedly tripped and fell over a chain suspended between two poles as she was walking within the property of Comsewogue High School. At the time the accident occurred, the school was hosting a pep rally, and 700 to 1,000 attendees, including the plaintiff, were walking from the football field, where the pep rally was held, to a bonfire, which was located in an area near the gymnasium. In March 2012, the plaintiff, by her father, commenced this action against the defendant. After discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the motion.
There is no duty to warn of a condition which is open and obvious and not inherently dangerous (see Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767 N.Y.S.2d 40 ). “The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury” (Shah v. Mercy Med. Ctr., 71 A.D.3d 1120, 1120, 898 N.Y.S.2d 589 ; see Pellegrino v. Trapasso, 114 A.D.3d 917, 918, 980 N.Y.S.2d 813 ; Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 619, 896 N.Y.S.2d 400 ; Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 1009, 864 N.Y.S.2d 554 ). “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” (Shah v. Mercy Med. Ctr., 71 A.D.3d at 1120, 898 N.Y.S.2d 589 ; see Stoppeli v. Yacenda, 78 A.D.3d 815, 816, 911 N.Y.S.2d 119 ; Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 1062, 908 N.Y.S.2d 124 ; Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d at 1009, 864 N.Y.S.2d 554 ).
Here, the defendant failed to establish, prima facie, that the chain was open and obvious given the crowd and lighting conditions at the time of the accident (see Lazic v. Trump Vil. Section 3, Inc., 134 A.D.3d 776, 20 N.Y.S.3d 643 ; Cassone v. State of New York, 85 A.D.3d 837, 925 N.Y.S.2d 197 ). 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, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Contrary to the defendant's contention, the facts in this Court's decision and order in the case of Callen v. Comsewogue School Dist. , 95 A.D.3d 814, 942 N.Y.S.2d 818 are distinguishable, and do not require a different result.
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment.