        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

347
CA 16-00971
PRESENT: WHALEN, P.J., CARNI, LINDLEY, AND NEMOYER, JJ.


LINDA SCHNEIDER, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CORPORATE PLACE, LLC, AND THE CABOT GROUP, INC.,
DEFENDANTS-APPELLANTS.


HURWITZ & FINE, P.C., BUFFALO (MARC A. SCHULZ OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

FINUCANE AND HARTZELL, LLP, PITTSFORD (LEO G. FINUCANE OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Debra
A. Martin, A.J.), entered March 15, 2016. The order denied the motion
of defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when she tripped and fell on a speed
bump in an alleyway at premises owned by defendant Corporate Place,
LLC, and managed by defendant The Cabot Group, Inc. Plaintiff alleged
in her amended complaint that defendants were negligent, inter alia,
in installing the speed bump directly adjacent to a marked pedestrian
crosswalk and then painting the speed bump the same color as the
crosswalk pavement markings, thus making it difficult for pedestrians
to visually distinguish the elevated speed bump from the crosswalk.
Supreme Court denied defendants’ motion for summary judgment
dismissing the amended complaint, and we affirm.

     Contrary to defendants’ contention, we conclude that they failed
to establish as a matter of law that the hazard posed by the speed
bump was open and obvious and thus that they had no duty to warn
plaintiff of a tripping hazard. It is well established that there is
no duty to warn of an open and obvious dangerous condition “because
‘in such instances the condition is a warning in itself’ ” (Mazurek v
Home Depot U.S.A., 303 AD2d 960, 962; see Tagle v Jakob, 97 NY2d 165,
169). “Whether a hazard is open and obvious cannot be divorced from
the surrounding circumstances . . . 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” (Calandrino v Town of Babylon, 95 AD3d 1054,
                                 -2-                           347
                                                         CA 16-00971

1056 [internal quotation marks omitted]; see Hayes v Texas Roadhouse
Holdings, LLC, 100 AD3d 1532, 1533-1534). “Some visible hazards,
because of their nature or location, are likely to be overlooked . .
. , and the facts here simply do not warrant concluding as a matter of
law that the [speed bump] was so obvious that it would necessarily be
noticed by any careful observer, so as to make any warning
superfluous” (Juoniene v H.R.H. Constr. Corp., 6 AD3d 199, 200-201;
see Grizzell v JQ Assoc., LLC, 110 AD3d 762, 764).

     We further conclude that the affidavit of defendants’ engineering
expert is insufficient to satisfy defendants’ initial burden on the
issue whether the premises were maintained in a reasonably safe
condition. There is no indication in the affidavit that defendants’
engineering expert visited the site of the accident (see generally
Kasner v Pathmark Stores, Inc., 18 AD3d 440, 441), and he addressed in
only conclusory fashion the visibility of the speed bump under the
conditions in the alleyway at the relevant time of day with respect to
the crosswalk markings of identical color (see generally Costanzo v
County of Chautauqua, 110 AD3d 1473, 1473). Contrary to defendants’
further contention, compliance with regulations or a building code is
not dispositive on the issue of negligence (see Bamrick v Orchard
Brooke Living Ctr., 5 AD3d 1031, 1032). Although plaintiff may have
been aware of the existence of the speed bump prior to her fall, her
alleged failure to keep a known danger in mind is but one of the
factors to be considered by the trier of fact in determining the
existence of culpable conduct, if any, attributable to plaintiff
within the meaning of the comparative negligence statute (see
generally CPLR 1411; Flynn v City of New York, 103 AD2d 98, 100-101).

     Defendants’ failure to make a prima facie showing of their
entitlement to judgment as a matter of law requires denial of the
motion, regardless of the sufficiency of the opposing papers (see
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), and we
therefore do not reach defendants’ remaining contentions with respect
to the opposing papers.




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
