Summary Judgment Reversed

To Be Argued By:
MATTHEW J. ZULLO

Appellate Division Case No. 2004-02745
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SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND DEPARTMENT
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JOSEPHA MINER,

Plaintiff-Appellant,

-against-

NORTHPORT YACHT CLUB,

Defendant-Respondent.
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BRIEF FOR PLAINTIFF-APPELLANT,
JOSEPHA MINER

RAPPAPORT, GLASS, GREENE
& LEVINE, LLP.
Attorneys for the Plaintiff-Appellant,
Josepha Miner
445 Broad Hollow Road
Melville, NY 11747-4740
(631) 293-2300

Suffolk County Clerk's Index No. 20519/02

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................................................................... i

QUESTIONS PRESENTED................................................................... 1

PRELIMINARY STATEMENT................................................................ 2

STATEMENT OF FACTS...................................................................... 3

POINT I
THE LOWER COURT IMPROPERLY MADE
DETERMINATIONS ON ISSUES OF FACT
CONTRARY TO THE EVIDENCE PRESENTED
AND IMPROPERLY GRANTED THE DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT........................................... 5

POINT II
THE LOWER COURT ERRED IN APPLYING THE
“OPEN AND OBVIOUS” DOCTRINE SINCE THE
SUBJECT HAZARD WAS OF A NATURE THAT COULD
BE REASONABLY OVERLOOKED GIVEN
THE CONDITIONS THEN AND THERE EXISTING........................... 9

CONCLUSION....................................................................................... 11

TABLE OF AUTHORITIES

Page

Bruker v. Fischbein
2 A.D.3d 254, 769 N.Y.S.2d 34 (1st Dept. 2003).................................... 8

Gallagher v. St. Raymond’s R.C. Church
21 N.Y.2d 554, 284 N.Y.S.2d 401 (1968)............................................... 7

Guzman v. Haven Plaza Housing Development Fund Co.
69 N.Y.2d 559, 516 N.Y.S.2d 451 (Court of Appeals, 1987).................. 8

Liriano v. Hobart Corp.
92 N.Y.2d 232, 677 N.Y.S.2d 764 (3d Dept., August 31, 1998)............. 8

McDonald v. City of Schenectady
308 A.D.2d 125, 127, 761 N.Y.S.2d 752, 754 (3d Dept. 2003).............. 10

Peralta v. Henriquez
100 N.Y.2d 139, 760 N.Y.S.2d 741 (May 13, 2003) .............................. 7

Piluso v. Bell Atlantic Corp.
305 A.D.2d 68, 759 N.Y.S.2d 58 (1st Dept. 2003)................................. 8

Shirman v. NYC Transit Authority
264 A.D.2d 832, 95 N.Y.S.2d 852 (2d Dept. 1999)............................... 7

S.J. Capelin Associates v. Globe
34 N.Y.2d 338, 357 N.Y.S.2d 478 (1974)............................................. 5

Sousie v. Lansingburgh Boys and Girls Club, Inc.
306 A.D.2d 614, 759 N.Y.S.2d 606 (3d Dept. 2003)............................ 7

Szczerbiak v. Pilat
90 N.Y.2d 553, 556, 664 N.Y.S.2d 252 (1997)..................................... 7

Tagle v. Jakob
97 N.Y.2d 165, 737 N.Y.S.2d 331 (2001)............................................. 10

Tarrazi v. 2025 Richmond Avenue Assoc.
296 A.D.2d 542, 745 N.Y.S.2d 222 (2002)........................................... 7

Thomas v. Drake
145 A.D.2d 87, 535 N.Y.S.2d 229 (3d Dept. 1988)............................... 5

Thornhill v. Toys “R” Us
183 A.D.2d 1071, 583 N.Y.S.2d 644 (3d Dept. 1992)........................... 9

i QUESTION PRESENTED

1. Did the defendant prove, as a matter of law, entitlement to summary judgment dismissing plaintiff's Complaint?

ANSWER: The lower court answered this question in the affirmative.

PRELIMINARY STATEMENT

It is the plaintiff-appellant's position that the lower court erred in granting the defendant's motion for summary judgment dismissing the plaintiff's Complaint. The lower court erred by making factual determinations as to items at issue, by ignoring triable issues of fact by taking the defendants-respondents’ evidence at full value while ignoring and discounting the evidence submitted in opposition by the plaintiff-appellant and by making evidentiary determinations contrary to the facts.
Plaintiff-appellant will demonstrate here that the defendant-respondent was not entitled to summary judgment in that there were material factual issues concerning the safety of the area and the lighting conditions at the time of the incident. The Court failed to review and appreciate the pleadings which alleged inadequate lighting as a contributing factor in the happening of the accident, and improperly applied the “open and obvious” condition doctrine.
STATEMENT OF FACTS
This action arose out of a trip and all accident which occurred on September 11, 1999 while the plaintiff-appellant was a guest at the NORTHPORT YACHT CLUB, where she was attending a dinner party (R 160).
The incident took place at the subject entrance/exit consisting of two doors, a small landing area outside of the door and a one-step riser leading to/from a slate walkway (R 81-83). There was a canvas cover awning at this area and there was a single recessed, square light fixture (R 144-145). The incident took place while the plaintiff, an 86-year-old woman at the time of the accident, was exiting the yacht club (R 79). The incident took place at approximately 7:30 p.m., at dusk (R 86). The lighting in the vestibule and the area where the incident took place was poor (R 160, 162) . There was one light fixture and the light was not turned on (R 160, 162). The single step riser was not visible, was not marked or demarcated in any way (R 83) and because of these factors, the plaintiff missed the step (R 84) and sustained a ruptured right patellar tendon requiring surgery (R 93).
A witness to the accident was Joanne Moran, who provided an affidavit concerning the details of the incident (R 162-163). Joanne Moran concurred that the subject step was not visible because of poor lighting, that the defendant failed to warn of the drop, and failed to turn on the single light in the area of the incident.
In support of the defendant-respondent’s motion for summary judgment, the defendant submitted a copy of the Summons and Complaint (R 22-26), the Answer (R 27-31), plaintiff’s Bill of Particulars (R 172-178), laser copies of photographs depicting the site of the incident (R 52-54), a copy of the plaintiff’s deposition transcript (R 55-127) as well as the deposition transcript of the defendant by Vice Commodore, John Amante (R 128-151). In opposition to the motion, the plaintiff submitted laser color copies of photographs of the area of the incident (R 159), deposition transcript of John Amante (R 128-151), deposition transcript of Josepha Miner (R 55-127), an affidavit from Josepha Miner (R 160-161) and an affidavit from Joanne Moran (R 162-163).
A separate motion was made by the plaintiff-appellant for a special preference based on the plaintiff’s age. This motion was denied as moot.
The Honorable Peter Fox Cohalan granted the defendant’s motion for summary judgment and dismissed the plaintiff-appellant’s Complaint. Justice Cohalan found that there were no questions of fact, the incident was solely caused by the plaintiff’s inattention, that the single step riser was an open and obvious condition and defendant was entitled to summary judgment as a matter of law. This appeal followed.
POINT I
THE LOWER COURT IMPROPERLY MADE
DETERMINATIONS ON ISSUES OF FACT
CONTRARY TO THE EVIDENCE PRESENTED
AND IMPROPERLY GRANTED THE DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

In reading the Judge’s opinion, it is clear that the Court was looking for a reason to dismiss this case. Though the Court cites the usual language concerning the Court’s function on a motion for summary judgment, namely that it’s function is issue finding, not issue determination, the Court here failed to follow this longstanding rule. The Court determined issues of fact and made conclusions concerning the cause of the accident. In citing Thomas v. Drake 145 A.D.2d 87, 535 N.Y.S.2d 229 (3d Dept. 1988), the Court stated “it is the function of the court on a motion for summary judgment to consider all the facts in a light most favorable to the party opposing the motion and to determine whether there are any material and triable issues of fact presented.” (R 5). Citing S.J. Capelin Associates v. Globe, 34 N.Y.2d 338, 357 N.Y.S.2d 478 (1974) (R 5-6), the Court further stated “the key is issue finding, not issue determination, and the court should not attempt to determine questions of credibility.” Despite these edicts by the court in its own decision, the Court concludes that it was inattention to the one-step stoop from the premises to the patio which resulted in this accident, concludes that there was adequate lighting so as to make the step “open and obvious”, and concludes that lighting was not an issue until after the summary judgment motion was made.
The Court concluded, on its own, that since the accident took place in September at 7:30 p.m., there was sufficient lighting for the plaintiff to see the subject step, when a review of any sunset chart for that date, September 11, 1999, indicates a sunset of 7:12 p.m. The Court also noted the plaintiff’s deteriorating eye condition as a factor. The record is completely devoid of any medical testimony, evidence or documentation concerning the degree of impairment, if any, that the plaintiff has concerning her vision. The Court completely ignored the plaintiff’s affidavit wherein she stated that the lighting in the vestibule and in the area where the incident took place was poor and that she could not observe the steps because of the lighting. The Court further ignored the affidavit of Joanne Moran, who confirmed that there was inadequate lighting in the area where the incident took place and that one could not observe the step because of the poor lighting.
The Court relied upon cases, finding that there is no duty on a property owner to warn of a danger that is readily apparent, obvious, in plain view and observable by a plaintiff’s reasonable use of her senses. The undisputed evidence by the plaintiff and a witness is that the step was not apparent, obvious, in plan view and observable by the reasonable use of one’s senses because there was no lighting provided to make the step observable in the area where the incident took place.
The Court totally dismissed the issue of lighting based on defendant’s contention that this issue wasn’t raised until after the summary judgment motion was made. This is entirely inaccurate and anyone giving careful review of the Complaint (R 24-25) and the Bill of Particulars (R 172-178) would see that inadequate lighting was an allegation of negligence from the time the Complaint was filed with the Court.
The record is completely devoid of any evidence indicating that there was adequate lighting in the vestibule where the incident took place. In fact, the opposite is true. It is uncontradicted evidence from the plaintiff and from a witness indicating that the subject step was not observable because of the absence of lighting.
The defendant-respondent, NORTHPORT YACHT CLUB, is a private club and is a catering hall open to the public. The owner of a public building is required to light the exterior of its building at all times when it is open to the public and the public is entitled to a safe and reasonable means to enter and exit the building. Gallagher v. St. Raymond’s R.C. Church, 21 N.Y.2d 554, 284 N.Y.S.2d 401 (1968); Sousie v. Lansingburgh Boys and Girls Club, Inc., 306 A.D.2d 614, 759 N.Y.S.2d 606 (3d Dept. 2003); Peralta v. Henriquez, 100 N.Y.2d 139, 760 N.Y.S.2d 741 (May 13, 2003); Tarrazi v. 2025 Richmond Avenue Assoc., 296 A.D.2d 542, 745 N.Y.S.2d 222 (2002).
A landowner whose property is open to the public is charged with the duty of providing safe means of ingress and egress, which includes a duty to provide adequate lighting. Shirman v. NYC Transit Authority, 264 A.D.2d 832, 95 N.Y.S.2d 852 (2d Dept. 1999). In considering a motion for summary judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the non-movant. Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252 (1997). Here, the Court did just the opposite, drawing inferences and conclusions favorable to the moving party based on speculation. The Court speculated that the issue of lighting was not brought up until the time of the motion, the Court speculated that the cause of the fall was due to the plaintiff’s inattention and poor vision and had nothing to do with the condition of the step or the lighting. Finally, the Court completely ignored evidence from the plaintiff and from a witness that stated that the only light in the area was not on and that one could not see the subject step because of inadequate lighting. It is up to a jury to evaluate the evidence presented in conjunction with all other proof. Whether the step constituted a safe condition, whether the defendant was negligent in failing to take the steps necessary to safeguard the public are questions for the jury. While a step does not, in and of itself, constitute an unsafe condition, aspects of its positioning, placement or related features, such as the absence of adequate lighting or handrails, may render them unsafe. Guzman v. Haven Plaza Housing Development Fund Co., 69 N.Y.2d 559, 516 N.Y.S.2d 451 (Court of Appeals, 1987).
The issue of whether a defect is open and obvious is generally one of fact which should not be determined as a matter of law, and where reasonable minds might disagree as to the extent of plaintiff’s knowledge of the hazard, and whether the hazard was readily observable, the question of liability and failure to warn is within the province of the jury. Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764 (3d Dept., August 31, 1998). It is only where one conclusion can be drawn from the established facts that the issue of whether a risk was open and obvious may be decided by the court as a matter of law. Bruker v. Fischbein, 2 A.D.3d 254, 769 N.Y.S.2d 34 (1st Dept. 2003).
The conflicts concerning whether the subject step was open and obvious, whether there was adequate lighting, whether there was a failure or duty to warn the plaintiff and whether plaintiff was comparatively negligent require jury resolution. Liriano, supra.; Piluso v. Bell Atlantic Corp., 305 A.D.2d 68, 759 N.Y.S.2d 58 (1st Dept. 2003).
POINT II
THE LOWER COURT ERRED IN APPLYING THE
“OPEN AND OBVIOUS” DOCTRINE SINCE THE
SUBJECT HAZARD WAS OF A NATURE THAT COULD
BE REASONABLY OVERLOOKED GIVEN
THE CONDITIONS THEN AND THERE EXISTING

The law upon which the motion court decided this matter, the so-called “open and obvious” doctrine limits the duty the law imposes upon a property owner when a hazard on the property is apparent to all. The doctrine provides that a landowner has no duty to warn of an open and obvious danger that would be noticed by any observer reasonably using his or her senses. Basically, when a warning would add nothing to a user’s appreciation of a danger, no duty to warn exists as no benefit would be gained by requiring a warning. Here, in view of the color of the step, the placement of the step and the lack of adequate lighting, it cannot be fairly said that the presence of the step was so obvious that it would necessarily be noticed by any observer reasonably using his or her senses, so as to make any warning superfluous. In fact, the affidavit of Joanne Moran, as well as the plaintiff, indicated that the subject step was not readily observable. Further, the one-step riser, though more noticeable upon approaching it from below, is less noticeable by a person standing immediately above it, and whether or not this step was reasonably observable is best left to the finder of fact. The nature or location of some hazards, while they are technically visible, make them likely to be overlooked, due to distractions inherent to the location, the color of the step or the lighting in the area. Even visible hazards do not necessarily qualify as open and obvious. Thornhill v. Toys “R” Us, 183 A.D.2d 1071, 583 N.Y.S.2d 644 (3d Dept. 1992).
The motion court erred by applying the “open and obvious” rule more broadly than permissible and thereby eradicated not only the duty to warn but any duty to protect against or eliminate the hazard. The “open and obvious” nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a landowner’s duty to maintain his or her property in a reasonably safe condition. McDonald v. City of Schenectady, 308 A.D.2d 125, 127, 761 N.Y.S.2d 752, 754 (3d Dept. 2003). Also see Tagle v. Jakob, 97 N.Y.2d 165, 737 N.Y.S.2d 331 (2001).
The Court further ignored the codes cited in the opposition papers to the motion that gave inexpensive, sensible and easy ways to warn and thereby eliminate the hazard. Even assuming that the cited codes are inapplicable, it does not preclude the jury from finding that a modification of the types suggested would have been a reasonable manner in which to protect patrons.
It is not disputed that a duty of care was owed to plaintiff as a patron of defendant’s business. The issues of whether the condition was “open and obvious” under the circumstances, whether the premises were reasonably safe, whether defendant was negligent and such negligence was a substantial factor in causing plaintiff’s injury and whether plaintiff’s conduct was also negligent, could not in this instance be decided as a matter of law; such issue should remain for trial.

CONCLUSION

For the reasons set forth above, it is respectfully requested that this Court should reverse the Order below denying the defendants-respondents’ motion for summary judgment, together with such other and further relief as this Court may deem just and proper.
August 30, 2004

Dick Bailey Appellate Printing Service, Inc.
25 Chapel Street, 6th Floor
P.O. Box 023030
Brooklyn, NY 11202-3030

RE: Miner v. Northport Yacht Club
Appellate Docket No. 2004-2745
S/Suffolk Index No. 20519/02
Our File: 7596

Dear Sir/Madam:

Enclosed please find our Appellant's Brief, which we ask that you print and serve on the Court and our adversary (listed below) BEFORE SEPTEMBER 20, 2004. You recently prepared the Record on Appeal in this matter. Also attached is our check in the sum of $315.00 made payable to the "Appellate Division, Second Department” for the filing fee.

Should you have any questions with respect to this request, please feel free to contact the undersigned at Extension 120 or my assistant, Theresa, at Extension 102.

Thank you for your assistance in this matter.

Very truly yours,

RAPPAPORT, GLASS, GREENE & LEVINE, LLP

MATTHEW J. ZULLO
MJZ:tmm
Enc.

PARTY TO BE SERVED:
PEREZ, FUREY & VARVARO
Attorneys for Defendant-Respondent,
NORTHPORT YACHT CLUB
333 Earle Ovington Boulevard
Uniondale, NY 11553-3644