Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and oral argument on September 4, 2024, pursuant to CPLR § 3212, Defendants' Motion for Summary Judgment dismissing the Plaintiff's complaint and any crossclaims (motion sequence # 1) and Plaintiff's Cross-Motion for Summary Judgment regarding liability against Defendants (motion sequence # 2) are both DENIED.

This personal injury action arises from an accident on April 14, 2021 at Brooklyn Bridge Park.^[FN1] Plaintiff alleges that, while jogging in the park and to avoid a collision with another [*2]runner, he left the running path and entered a grassy area separated by wooden posts.^[FN2] When he attempted to reenter the running path between another pair of wooden posts, he tripped on the metallic wiring he did not see connecting the wooden posts.^[FN3] Plaintiff subsequently commenced this action to recover damages for personal injuries against Defendants Brooklyn Bridge Park Corporation and the City of New York.^[FN4]

A party moving for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law and must tender sufficient evidence in admissible form to demonstrate the absence of any material factual issues. See CPLR § 3212(b); Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Korn v Korn, 135 AD3d 1023, 1024 (3d Dept. 2016). Failure to establish entitlement to summary judgment requires denial of the motion. See Alvarez, 68 NY2d at 324; Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). If the movant establishes prima facie entitlement to judgment as a matter of law, the burden shifts to the opposing party to produce evidence in admissible form sufficient to establish an issue of material fact requiring a trial. See CPLR 3212; Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562. "[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment." Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 (2004) (internal quotations omitted). The court must view the totality of evidence presented in the light most favorable to the nonmoving party and accord that party the benefit of every favorable inference. See Fortune v Raritan Building Services Corp., 175 AD3d 469, 470 (2d Dept. 2019); Emigrant Bank v Drimmer, 171 AD3d 1132, 1134 (2d Dept. 2019).

Defendants argue entitlement to summary judgment because the metallic wire fence, which is alleged to have caused Plaintiff's accident, is an open and obvious condition and does not constitute an inherently dangerous condition.^[FN5] "A landowner has a duty to maintain its premises in a reasonably safe condition." Marino v. Shop-Rite Supermarkets, Inc., 230 AD3d 668 (2d Dept. 2024) (quoting Brett v. AJ 1086 Assocs., LLC, 189 AD3d 1153 [2d Dept. 2020]). "However, a property owner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous." Id. at 669 (quoting Evans v. Fields, 217 AD3d 656 [2d Dept. 2023]). "A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident." Id. (quoting Butler v. NYU Winthrop Hosp., 225 AD3d 658 [2d Dept. 2024]). While there is no duty to [*3]protect or warn against an open and obvious condition that is not inherently dangerous, "the determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case." S.S. v. Vill. of Sleepy Hollow, 228 AD3d 891 (2d Dept. 2024) (quoting Rosenman v. Siwiec, 196 AD3d 523, 525 [2d Dept. 2021]). "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." Rosenman v. Siwiec, 196 AD3d 523 (2d Dept. 2021).

Here, Defendants failed to establish that the metallic wire fence was open and obvious and not inherently dangerous given the color of the metallic fence blending in against the concrete backdrop and the Plaintiff having veered off the running path to avoid a collision with another jogger.^[FN6] See Rosenman, 196 AD3d at 525; see also Baron v. 305-323 E. Shore Rd. Corp., 121 AD3d 826 (2d Dept. 2014) (summary judgment denied in part based on the color of the condition blending in with the background). Defendants' arguments that the placement of the wire fence in proximity to the running path made it open and obvious ^[FN7] is unavailing. At his deposition, Plaintiff testified that he was able to proceed between two wooden posts to enter the grassy lawn area,^[FN8] and that he previously saw the wooden posts on his runs but never metallic wiring between them.^[FN9] Compare Schwartz v. Town of Ramapo, 197 AD3d 753, 755 (2d Dept. 2021) where that Court granted summary judgment because plaintiff there was "aware of the potential for injury of the mechanism from which the injury results". Defendants submitted the deposition testimony of Jeffrey Sandgrund, Chief Operating Officer of Brooklyn Bridge Park, who confirmed that not all the wooden posts in the park contain metallic wiring between them, as those open sections serve as entrances to the grassy lawn area.^[FN10] Whether the metallic wire fence was open and obvious and not inherently dangerous is a triable issue of fact requiring denial of Defendants' motion.

Plaintiff's cross-motion sequence # 2 is denied because it was filed untimely and beyond the parameters set by the Court.^[FN11] See also CPLR § 3212(a) and Brill v. City of New York, 2 NY3d 648 (2004). Alternatively, even if Plaintiff's untimely motion were considered, it fails on the merits. Plaintiff argues entitlement to summary judgment because the metallic wire fence is [*4]an optical confusion and inherently dangerous.^[FN12] An optical confusion generally occurs where a condition in an area creates the "illusion of a flat surface, visually obscuring any steps." Masker v. Smith, 188 AD3d 867 (2d Dept. 2020). "Findings of liability based on optical confusion have typically turned on factors such as inadequate warning of the drop coupled with poor lighting, inadequate demarcation between raised and lowered areas, or some other distraction or similar dangerous condition." See Id. at 869.

Here, Plaintiff failed to establish that the metallic wire fence was an "optical confusion" creating an inherently dangerous condition. This incident happened in the morning and Plaintiff jogged on this path approximately fifty (50) times prior.^[FN13] Whether the metallic wire fence was inherently dangerous is a triable issue of fact. See Masker, 188 AD3d at 869 (summary judgment denied in part given the lighting condition and plaintiff's familiarity with the premises). Plaintiff's cross-motion is untimely and otherwise failed to establish no triable issues of fact exist. Therefore, it must be denied.

This constitutes the Decision and Order of the Court.