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Open Trap Door not a Trap for Defendant Deli Curran v. 201 West 87th Street, L.P. Second Department – NYLJ June 23, 2017

July 19, 2017 • Posted By Joseph A. French • Insurance Coverage

            The defendant deli appealed an adverse summary judgment decision to the Second Department.  The Appellate Court reversed the Order, and awarded summary judgment to the deli.

            The plaintiff was a customer in the deli, and while walking inside the deli, he allegedly fell through an interior open trap door.  A deli employee allegedly left it open.

            “The owner demonstrated its prima facie entitlement to judgment as a matter of law dismissing the Complaint insofar as asserted against it.  The trap door itself was not defective or unsafe when closed, but allegedly became unsafe only upon being left open (see Reid v. 320 E.81st St. Corp., 19 AD3d 471, 472; Daniel v. Fleisher, 230 AD2d763; Wisznic v. Nostrand Shoppers, 215 AD2d 553).  This is the case even assuming the truth of plaintiffs’ allegation of a statutory violation based upon the installation of the trap door without a permit (see Maloy v. New York Real Estate Assn., 156 NY 205, 212-213).  Accordingly, under the circumstances of this case, the owner demonstrated that there was no basis for imposing liability upon it (see Anilus v. Realties, 206 AD2d 446, 447”.

            Curiously, the mere fact that the interior trap door was left open did not otherwise create an unsafe condition.  Had it been an exterior trap door, we believe plaintiff’s chances of prevailing would have been far greater.