Czorniewy v. Mosera

Oct 7, 2002
Versions:298 A.D.2d 352
751 N.Y.S.2d 375
2002 N.Y. App. Div. LEXIS 9381

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated April 9, 2002, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

While an owner or occupier of land owes a duty of reasonable care to maintain his or her property in a safe condition (see Basso v Miller, 40 NY2d 233), there is no duty to protect or warn against an open and obvious danger, particularly where *353the plaintiff was actually aware of the condition (see Tagle v Jakob, 97 NY2d 165, 169; Germain v Hegedus, 289 AD2d 443; Bojovic v New York City Hous. Auth., 284 AD2d 356, 357; Gonzalez v Fastflex, Inc., 270 AD2d 229; Tarrazi v 2025 Richmond Ave. Assoc., 260 AD2d 468, 469). The defendants established that the injured plaintiff was aware of the unlit deck in their backyard and opened the sliding door and exited onto the deck before the defendants had an opportunity to illuminate it (see Tarrazi v 2025 Richmond Ave. Assoc., supra). Under these circumstances, the defendants had no duty to protect or warn the injured plaintiff from the hazard. Accordingly, the defendants’ motion for summary judgment should have been granted. Feuerstein, J.P., Krausman, Luciano, Townes and Cozier, JJ., concur.