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GOOD NEWS FOR BRONX COUNTY LANDOWNERS AND THEIR INSURERS

September 1, 2020 • Posted By Sean O. Edwards • Insurance Coverage

A June 29, 2020 decision by Judge Llinet Rosado in the case of Nathaneal Maldonado v. N.Y.C.H.A., New York State Supreme Court, Bronx County, 030158/2007 establishes that owners and insurers who can show (without admissible evidence to raise any material fact) that the claimed condition is both open and obvious, and as a matter of law, not inherently dangerous, may succeed in having matters against them dismissed by dispositive motions.  Below we explain why this is significant.  The First Appellate Department of New York that covers the Bronx (Bronx County) and Manhattan (New York County) had not generally granted summary judgment upon a showing that the claimed danger was open and obvious.  The First Department rule generally is that an, “open and obvious danger does not negate the defendant’s duty to plaintiff [to keep the premises reasonably safe], but simply raises issues of fact as to her comparative fault”.  Tuttle v. Anne LeConey, Inc., 258 A.D.2d 334, 685 N.Y.S.2d 204 (1st Dept 1999).  Accordingly, in the First Department, even if a finding that the condition in question is open and obvious, the plaintiff generally gets to the jury and summary judgment is not granted.  In Nathanael Maldonado v. N.Y.C.H.A. Judge Rosado appears to take a broader approach than the First Department, finding that open and obvious conditions are dismissible.  Moving parties must still make a prima-facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact.  As well, if the moving party produces the required evidence, the burden shifts to the non-moving party "to establish the existence of material issues of fact which require a trial of the action." Vega v Restani Constr. Corp., 18 NY3d 499,503,542 NYS2d 923,501. In Maldonado, the plaintiff testified that he saw the curb over which he eventually tripped, in advance of tripping and falling over the same.  In addition, the court opined that the photographs of the area in question reflected an unobstructed and open view of the curb. The Court also found that the record demonstrated that the presence of the curb was open and obvious and observable to someone making reasonable use of their senses. There was no testimony related to any other allegedly unsafe condition separate and apart from the subject height differential.  The Court granted the landowner’s motion for summary judgment on liability based on the landowner’s theory that the condition in question was open and obvious.   The Maldonado decision should encourage defendant landowners in the Bronx and Manhattan who were previously discouraged from moving for summary judgment to evaluate the facts of cases in light of this ruling to see if the same is appropriate for an open and obvious motion for summary judgment.  The attorneys at French and Casey are available to assist you in defending premises liability matters where defendants and insurers believe that an open and obvious condition may be at issue.  For further information, contact Sean Edwards at SEdwards@frenchcasey.com. Read More