SUMMARY JUDGMENT GRANTED TO LANDLORD AND CONTRACTOR FOR SIDEWALK TRIP AND FALL ACCIDENT

Court: Supreme Court, Appellate Division, Second Department, New York.

On October 14, 2006, the plaintiff was a tenant in a two‑family residence owned by the defendant Christopher Gobin. That morning, the defendant Plaza Contracting Corporation (hereinafter Plaza), a contractor hired by Gobin, was in the process of replacing the sidewalk in front of the premises. Plaza's work had progressed to the point that the existing sidewalk had been removed, the earth beneath the sidewalk had been leveled, a wire mesh grid had been placed on top of the earth, and concrete had been poured for a portion of the new sidewalk. At about 10:30 A.M., the plaintiff left her apartment and, despite her observations of the work in progress, attempted to walk across the excavated area where the mesh grid was still exposed. The plaintiff alleges that the heel of one of her boots became stuck in the grid, causing her to fall and sustain injuries. After depositions had been conducted, the defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the defendants' motions for summary judgment, and adhered to its determination on reargument.

Plaza also made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidentiary proof, including the plaintiff's deposition testimony and photographs of the accident site, that established that the temporary condition which caused the accident was open and obvious, and not inherently dangerous (see Capasso v. Village of Goshen, 84 A.D.3d 998, 922 N.Y.S.2d 567; McGrath v. Oyster Bay Visiting Nurse Assn., Inc., 84 A.D.3d 894, 923 N.Y.S.2d 162; Dinallo v. DAL Elec., 43 A.D.3d 981, 982, 842 N.Y.S.2d 519; Fernandez v. Edlund, 31 A.D.3d 601, 602, 819 N.Y.S.2d 291; Sun Ho Chung v. Jeong Sook Joh, 29 A.D.3d 677, 678, 815 N.Y.S.2d 641; Orlando v. Audax Constr. Corp., 14 A.D.3d 500, 501, 788 N.Y.S.2d 173; Greenstein v. Realife Land Improvement, Inc., 13 A.D.3d 338, 339, 786 N.Y.S.2d 110). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit, in which she contradicted her deposition testimony by claiming that the mesh grid appeared to be flush with the excavated surface, was an attempt to raise a feigned issue of fact as to whether the condition was open and obvious and, thus, insufficient to defeat summary judgment (see Freiser v. Stop & Shop Supermarket Co., LLC, 84 A.D.3d 1307, 923 N.Y.S.2d 732; Capasso v. Capasso, 84 A.D.3d 997, 923 N.Y.S.2d 199; Russ v. Fried, 73 A.D.3d 1153, 1154, 901 N.Y.S.2d 703; Sherman_Schiffman v. Costco Wholesale, Inc., 63 A.D.3d 1031, 884 N.Y.S.2d 760).