Boyd v. New York City Housing Authority

Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered on or about June 8, 2012, which denied defendant’s motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly. Plaintiff alleges that he was injured in the grounds outside the building in which he lives, when he could not find a seat on a bench, and decided to lean back against what he thought was a sturdy, three-foot-high black iron fence surrounding an area of greenery. In fact, he had leaned against an unlocked gate, which swung inward, causing him to fall and suffer injuries. Adthough property owners have a duty to maintain their property in a reasonably safe condition, and to warn of latent hazards of which they are aware {see Basso v Miller, 40 NY2d [543] 233, 245 [1976]), they have no duty to protect or warn, and a court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous (see e.g. Lazar v Burger Heaven, 88 AD3d 591 [1st Dept 2011]; Baynes v City of New York, 81 AD3d 423 [1st Dept 2011]; Cupo v Karfunkel, 1 AD3d 48, 52 [2d Dept 2003]). “In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property” (Cupo, 1 AD3d at 52). Here, defendant NYCHA established prima facie that the unlocked gate that allegedly caused plaintiff to injure himself was open and obvious, and was not inherently dangerous. The color photographs in the record show that the gate was “plainly observable and did not pose any danger to someone making reasonable use of his or her senses” (Buccino v City of New York, 84 AD3d 670, 670 [1st Dept 2011] [internal quotation marks omitted]; see also Gallub v Popei’s Clam Bar, Ltd., of Deer Park, 98 AD3d 559 [2d Dept 2012]). The gate was not obscured by other people or objects, or by its location, and nothing about it or the fence created any optical confusion. Plaintiff had lived in the building since 2007, and the gate had been unlocked and in the same condition since 2006, if not longer. Plaintiff testified that he looked at the fence before he leaned against it and “assumed it was sturdy,” and there is no evidence that he did not notice the gate because he was distracted. NYCHA’s superintendent of groundskeepers stated that NYCHA had not received any other complaints about the fence, and no one else had ever been hurt by it. Furthermore, “there is nothing inherently dangerous about a gate that has no lock” (Ortiz v New York City Hous. Auth., 85 AD3d 573, 574 [1st Dept 2011]). In opposition, plaintiff failed to raise an issue of fact (see Bloom v Lula Realty Corp., 43 AD3d 662, 662 [1st Dept 2007] [“plaintiff has failed to demonstrate that the absence of a knob or handle on the gate in any way constituted a defect, violated a statute, or was inherently dangerous”]). The dissent disagrees, finding an issue of fact whether the gate was a trap for the unwary, based on the affidavits of plaintiffs expert and an eyewitness stating that the fence and gate had the appearance of one continuous fence. However, the color photographs in the record show that the gate is not flush with the rest of the fence and that three hinges on the right side and a hasp on the left side of the gate, attached to posts that are thicker than the vertical bars in the fence, are clearly visible. Thus, the opinion of plaintiffs expert and the eyewitness are belied by the [544] photographs the expert took, which demonstrate that the condition was open and obvious and not inherently dangerous (see Salman v L-Ray LLC, 93 AD3d 568, 569 [1st Dept 2012] [“Defendants submitted evidence, including testimony and photographs, demonstrating that the condition of the steps was not inherently dangerous”]; Broodie v Gibco Enters., Ltd., 67 AD3d 418, 418 [1st Dept 2009] [“several color photographs in the record depicted the step as not particularly high, and clearly painted in white and black so as to be visible even in the low light provided by the recessed ceiling bulb above”]; Cardia v Winchester Holdings, LLC, 35 AD3d 336, 336-337 [2d Dept 2006] [“Winchester made a prima facie showing of entitlement to judgment as a matter of law by presenting photographs depicting the condition of the parking lot at the time of the plaintiffs accident, which demonstrate that the wheel stop over which the plaintiff tripped and fell was not an inherently dangerous condition, and was readily observable by those employing the reasonable use of their senses”]). Concur—Tom, J.E, Andrias, Abdus-Salaam and Gische, JJ.