Matheis v. Hunt Country Furniture, Inc.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated June 26, 2015, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff allegedly was injured when, as he was leaving a building on the defendant’s premises, he fell while descending a wooden single-step riser onto a wooden platform. The plaintiff commenced this action against the defendant to recover damages for his injuries. The defendant moved for summary judgment dismissing the complaint on the ground that the single-step riser was open and obvious and not inherently dangerous as a matter of law. The Supreme Court denied the motion. We affirm. The defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint. The evidence submitted in support of the defendant’s motion failed to eliminate all triable issues of fact as to whether the single-step riser was an open and obvious condition and not inherently dangerous (see Russo v Frankels Garden City Realty Co., 93 AD3d 708 [2012]; Roros v Oliva, 54 AD3d 398, 399-400 *714 [2008]). In particular, the defendant’s submissions presented issues of fact as to whether, under the circumstances, the plaintiff, who was unfamiliar with the premises, could reasonably perceive the existence of a change in elevation between the single-step riser and the platform below it, and whether the subject area created optical confusion (see Roros v Oliva, 54 AD3d at 400). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Balkin, J.P., Leventhal, Austin and Duffy, JJ., concur.