In Bissett v 30 Merrick Plaza, LLC, 2017 NY Slip Op 08805 (App. Div. 2d Dept. Dec. 20, 2017), the court affirmed the denial of defendant’s motion for summary judgment.
In this case, plaintiff alleged that she “was injured when she slipped and fell on a pile of wet leaves on one of the steps of an exterior staircase of a building owned by the defendant.”
Initially, the court summarized the applicable law:
A defendant property owner has a duty to maintain its premises in a “reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v Miller, 40 NY2d 233, 241 [internal quotation marks omitted]). However, it does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous (see Cupo v Karfunkel, 1 AD3d 48, 52). Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury (see Pellegrino v Trapasso, 114 AD3d 917, 918). Similarly, whether a condition is open and obvious depends on the circumstances of the case, and something that ordinarily would be readily observable may be obscured by inadequate illumination.
Applying the law, the court held:
Here, the defendant failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous (see Twersky v Incorporated Vil. of Great Neck, 127 AD3d at 739-740; cf. Misir v Beach [*2]Haven Apt. No. 1, Inc., 32 AD3d 1002). The plaintiff testified at her deposition that she fell on a two-inch thick pile of wet, matted down leaves on the seventh step of a staircase, consisting of 20 steps leading to a basement. The plaintiff further testified that the sky was overcast, that a light at the bottom of the staircase was not functioning, and that she could only see as far as the fifth step.
The defendant also failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition (see Gordon v American Museum of Natural History, 67 NY2d 836; Hickson v Walgreen Co., 150 AD3d 1087, 1088). The plaintiff testified that she fell into a pile of leaves and other debris one-foot deep at the bottom of the staircase. Brenner testified that he could not remember whether he had checked the subject staircase on his last weekly inspection prior to the accident and that he did not know whether the landscaper or anyone else was responsible for removing leaves from the staircase. Thus, the defendant failed to establish, prima facie, that the subject condition had not been there for a sufficient period of time for the defendant to have discovered and remedied it.