757 N.Y.S.2d 653 | N.Y. App. Div. | 2003
—Appeal from that part of an order of Supreme Court, Erie County (Mahoney, J.), entered January 22, 2002, which, upon reargument, adhered to its original decision.
It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the cross motion and third-party defendant’s motion are denied, the complaint and third-party complaint are reinstated, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Plaintiff commenced this action to recover damages for personal injuries he sustained when he slipped and fell in an elevator in defendant’s building. According to the deposition testimony of plaintiff, he initially noticed a puddle of water one square foot in size in the center of the elevator floor when he traveled from the sixth floor to the first floor. He reentered the elevator approximately 15 minutes later, and he slipped and fell in the puddle while leaving the elevator upon returning to the sixth floor. The elevator was manually operated by defendant’s employee, who was present both times that plaintiff rode the elevator. In granting defendant’s cross motion for summary judgment dismissing the complaint, Supreme Court determined that plaintiff had not met his burden of establishing that defendant “either created the hazard that caused the accident or had actual or constructive notice of the allegedly dangerous condition.” The court thereafter granted plaintiffs motion to reargue and, upon reargument, adhered to its original decision.
We note at the outset that the court erred in placing the initial burden of proof on plaintiff with respect to defendant’s cross motion. In seeking summary judgment dismissing the
Contrary to defendant’s contention, the fact that the slippery condition may have been open and obvious does not entitle defendant to summary judgment dismissing the complaint. The issue whether a condition was readily observable impacts on plaintiff’s comparative negligence and does not negate defendant’s duty to keep the premises reasonably safe (see Steenwerth v United Ref Co. of Pa., 273 AD2d 878 [2000]; Crawford v Marcello, 247 AD2d 907 [1998]). An open and obvious condition merely negates the duty to warn (see Williams v Chenango County Agrie. Socy., 272 AD2d 906, 906-907 [2000]; see also Holl v Holl, 270 AD2d 864 [2000]). Likewise, the issue whether the hazard was “trivial” is also one of fact, dependent on the “peculiar facts and circumstances of the case” (Denmark v Wal-Mart Stores, 266 AD2d 776, 777 [1999]; see Charbonneau v City of Cohoes, 232 AD2d 931, 933 [1996]).
Plaintiff’s motion to increase the ad damnum clause of the complaint was not addressed by the court in view of the fact that the court granted defendant’s cross motion for summary judgment dismissing the complaint. We therefore reverse the order insofar as appealed from, deny defendant’s cross motion