Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant dated June 16, 2022; Answering Affidavits and supporting papers by plaintiff dated July 9, 2022; Replying Affidavits and supporting papers by defendant dated August 2, 2022 ; it is ORDERED that the motion by the defendant pursuant to CPLR 3212 for an Order granting summary judgment dismissing the complaint is denied. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained as a result of a trip and fall accident on property owned by defendant located in Rocky Point, New York. The plaintiff alleges that while he was attending a parade in March 2018, he fell over a makeshift fence that was constructed using green rubber water hoses strung across wooden posts. The plaintiff alleges that the defendant negligently caused a dangerous condition to remain on its premises and that its negligence was the sole proximate cause of his injuries. The defendant now moves for an Order granting summary judgment dismissing the complaint on the ground that it did not have a duty to plaintiff and any negligence on its part was not the proximate cause of the plaintiff’s injuries. The plaintiff opposes the motion, arguing that there are issues of fact that warrant a trial. At his deposition, the plaintiff testified the accident occurred in Rocky Point along the route of the St. Patrick’s Day parade. He testified that although he had attended the parade on prior occasions, it was his first time in the area. The plaintiff stated that he was walking on the grass between the sidewalk and a fence made up of rubber hoses strung on wooden poles before the parade started. He was walking in front of his sister and his cousin at the time. While his was walking, his leg tripped on the hose part of the fence and he fell, hitting his head on the ground. He testified that the hose reached up to his knee and that he did not know whether he fell forward or backward. He stated that there were “a lot of people” waiting to watch the parade and that he did not see the hose prior to the accident. No one bumped into him, and he was not running or trying to jump over the hose at the time of the accident. The plaintiff’s sister, EC, testified that she was walking directly behind the plaintiff at the time of the accident but she did not see him fall. She stated that she did not notice the garden hose until after the plaintiff fell. Donald Donnelly testified that he was one of the owners of the building located at 585 Route 25A. He testified that there was a sidewalk in front of the building, and that there was a partition separating the sidewalk from the grass. He stated that the partition was not a fence, and he described it as 4 by 4 wooden posts with a rubber hose strung between them. The partition was in place for at least five years before the accident, and Donnelly was not unaware of any other accidents involving the partition. It is well settled that on a motion for summary judgment the function of the court is to determine whether issues of fact exist, not to resolve issues of fact or determine matters of credibility (see Doize v. Holiday Inn Ronkonkoma, 6 AD3d 573, 574, 774 NYS2d 792 [2d Dept 2004]). Furthermore, facts that are alleged by the nonmoving party and all inferences which may be drawn from them must be accepted as true (see O’Neill v. Town of Fishkill, 134 AD2d 487, 488, 521 NYS2d 272 [2d Dept 1987]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]; Andre v. Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). Once the movant meets this burden, the burden shifts to the opposing party to show by tender of sufficient facts in admissible form that triable issues remain which preclude summary judgment (Winegrad v. New York Univ. Med. Ctr., supra). However, in opposing a summary judgment motion, mere conclusions, unsubstantiated allegations or assertions are insufficient to raise triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). It is axiomatic that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff (see Pulka v. Edelman, 40 NY2d 781, 390 NYS2d 393 [1976]; Engelhart v. County of Orange, 16 AD3d 369, 790 NYS2d 704 [2d Dept 2005]). The defendant contends that the rubber hose strung on the wooden posts was open and obvious and not inherently dangerous; therefore, it did not have any duty to the plaintiff nor did it breach any duty to the plaintiff. “While a possessor of real property has a duty to maintain its premises in a reasonably safe manner…, it has no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” (Pirreca v. Smithtown Cent. School Dist., 208 AD3d 526, 527, 171 NYS3d 526 [2d Dept 2022]). As a general rule, “the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury”(Speredowich v. Long Is. R.R. Co., 164 AD3d 855, 856, 82 NYS3d 509 [2d Dept 2018] [internal quotation marks omitted]). Additionally, “[a] condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” (Shah v. Mercy Med. Ctr., 71 AD3d 1120, 1120, 898 NYS2d 589 [2d Dept 2010]; see Mullen v. Helen Keller Servs. for the Blind, 135 AD3d 837, 838, NYS3d 350 [2d Dept 2016]; Atehortua v. Lewin, 90 AD3d 794, 794, 935 NYS2d 102 [2d Dept 2011]). Here, the defendant has failed to establish that the partition located on the grass was open and obvious and not inherently dangerous as a matter of law (see Beck v. Bethpage Union Free School Dist., 82 AD3d 1026, 1028, 919 NYS2d 192 [2d Dept 2011]). The plaintiff testified that the area where the accident occurred was crowded on the day of the parade, and that he was not able to see the rubber house or the wooden poles before he tripped on it. The plaintiff had not previously visited the area and did not know of the existence of the hose and wooden poles. A jury could reasonably conclude that the partition described by the plaintiff and the defendant’s representative was a dangerous condition for the unwary under the circumstances (Shah v. Mercy Med. Ctr., 71 AD3d 1120, 1120, 898 NYS2d 589; Beck v. Bethpage Union Free School Dist., 82 AD3d 1026, 1028, 919 NYS2d 192). Accordingly, the motion of the defendant for an Order dismissing the complaint is denied. FINAL DISPOSITION X NON-FINAL DISPOSITION Dated: October 24, 2022
