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Publications : Personal injury, slip and fall, wet leaves - BIBI RAKEEBA MISTR, Appellant, v. BEACH HAVEN APARTMENT No. l, INC., Respondent. (Lois Law) (2006-Sep)
BIBI RAKEEBA MISTR, Appellant, v. BEACH HAVEN APARTMENT No. l, INC., Respondent.
Appellate Division of the Supreme Court of New York, Second Department.
September 26, 2006.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of Supreme Court, Kings County (Kramer, J.), dated July l8, 2005, which granted the defendant's motion for summary judgment dismissing the complaint. Wingate, Russotti & Shapiro, LLP, New York, N.Y. (Scott A.
Stern of counsel), for appellant. Kiley, Kiley & Kiley, Great Neck, N.Y. (James D, Kiley of counsel), for respondent. Before: Florio, J.P., Ritter, Goldstein and Lifson, JJ. Ordered that the order is affirmed, with costs. The plaintiff allegedly fell when she walked through a pile of wet leaves approximately four feet wide on a driveway adjacent to the defendant's building. The plaintiff claimed she had observed the pile of leaves upon exiting the defendant's building and walking down the driveway on her way to a store approximately 20 minutes prior to her fall. Upon returning from the store, the plaintiff walked in the
pile and fell, allegedly sustaining injuries. The plaintiff also claimed that she saw the pile of leaves three days before the date that she fell.
The defendant made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous (see Cupo v Karfun/cel, _],___AAQ3¢j_;4_$ [2003]; Sun Ho Chung v Jeong Sook Joh, 29g&D§;L§ZZ [2006]; Osborne v Village of N. Terrytewm l§9.A.12p.Q1v,224 119171: Webber v Miller, 17 AD3d 352 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the pile of leaves constituted a dangerous condition or whether the pile was open and obvious. Accordingly, summary judgment was properly granted in favor of the defendant.
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