Pampillonia v Burducea
2009 NY Slip Op 09632 [68 AD3d 1081]
December 22, 2009
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 10, 2010


John Pampillonia, Respondent,
v
Mahi Burducea et al., Appellants.

[*1] Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs of counsel), for appellants.

Flanzig & Flanzig, LLP, Mineola, N.Y. (Daniel Flanzig of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated July 7, 2009, as, upon reargument, denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied, upon reargument, the defendants' motion for summary judgment dismissing the complaint. In support of their motion, the defendants primarily argued that the allegedly dangerous condition which caused the subject accident was open and obvious. "Although there is no duty to warn of an open and obvious condition, this principle does not absolve a landowner of the duty to maintain the property in a reasonably safe condition" (Mooney v Petro, Inc., 51 AD3d 746, 747 [2008]; see Pastore v Town of Harrison, 57 AD3d 636, 637 [2008]; Ruiz v Hart Elm Corp., 44 AD3d 842, 843 [2007]; Cupo v Karfunkel, 1 AD3d 48, 51-52 [2003]).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law because they did not make a showing that they maintained their premises in a reasonably safe condition (see Salomon v Prainito, 52 AD3d 803, 805 [2008]; Fabish v Garden Bay Manor Condominium, 44 AD3d 820 [2007]; Hogan v Baker, 29 AD3d 740 [2006]). In light of this determination, we need not examine the sufficiency of the plaintiff's papers submitted in opposition (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Marshall v Institute for Community Living, Inc., 50 AD3d 975 [2008]; Pabon v Nouveau El. Indus., Inc., 49 AD3d 702 [2008]). Skelos, J.P., Dickerson, Eng and Sgroi, JJ., concur.