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

874
CA 16-00207
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


ELMER G. COX, JR. AND REBECCA A. COX,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MCCORMICK FARMS, INC. AND SYNERGY, LLC,
DEFENDANTS-RESPONDENTS.


LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (J. MICHAEL HAYES OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

HANCOCK ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL), FOR
DEFENDANT-RESPONDENT MCCORMICK FARMS, INC.

FELDMAN KIEFFER, LLP, BUFFALO (STEPHEN M. SORRELS OF COUNSEL), FOR
DEFENDANT-RESPONDENT SYNERGY, LLC.


     Appeal from an order of the Supreme Court, Wyoming County
(Michael M. Mohun, A.J.), entered April 16, 2015. The order, insofar
as appealed from, granted the motion of defendant Synergy, LLC, and
the cross motion of defendant McCormick Farms, Inc. for summary
judgment dismissing the amended complaint.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion of defendant
Synergy, LLC and the cross motion are denied, and the amended
complaint is reinstated.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Elmer G. Cox, Jr. (plaintiff) in a tractor-
trailer accident. They appeal from an order that, inter alia, granted
the motion of defendant Synergy, LLC (Synergy) and the cross motion of
defendant McCormick Farms, Inc. (McCormick) for summary judgment
dismissing the amended complaint against them. The evidence submitted
in support of and in opposition to the motion and cross motion
(collectively, motions) establishes that the accident occurred when
plaintiff attempted to drive the tractor-trailer into the driveway of
a farm owned by McCormick and operated in part by Synergy, and the
trailer’s rear wheels entered a ditch, causing the entire tractor-
trailer to flip onto its side. We agree with plaintiffs that Supreme
Court erred in granting the motions.

     “It is beyond dispute that landowners and business proprietors
have a duty to maintain their properties in reasonably safe condition”
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                                                         CA 16-00207

(Di Ponzio v Riordan, 89 NY2d 578, 582). Thus, “a landowner or
occupier of land owes a duty to persons coming upon his or her land
‘to keep it in a reasonably safe condition, considering all the
circumstances, including the purpose of the person’s presence on the
land and the likelihood of injury’ . . . There is, however, ‘no duty
on the part of a landowner [or occupier of land] to warn against a
condition that can readily be observed by those employing the
reasonable use of their senses’ . . . Where the condition is open and
obvious, ‘the condition is a warning in itself’ ” (Duclos v County of
Monroe, 258 AD2d 925, 926). “[T]he issue of whether a hazard is
latent or open and obvious is generally fact-specific and thus usually
a jury question” (Tagle v Jakob, 97 NY2d 165, 169; see McKnight v
Coppola, 113 AD3d 1087, 1087).

     Here, although defendants met their burden on the motions of
establishing that the ditch that allegedly caused the accident was an
open and obvious condition, plaintiffs raised a triable issue of fact
whether, at the time of the accident, it was obscured by drifting snow
and the removal of the stakes and reflectors that formerly marked its
boundaries. Consequently, the issue is “fact-specific and . . .
presents a question for resolution by the trier of the fact” (Centeno
v Regine’s Originals, Inc., 5 AD3d 210, 211; see generally Westbrook v
WR Activities-Cabrera Mkts., 5 AD3d 69, 71-72).

     Contrary to defendants’ contentions, the affidavit of plaintiff
was not “an attempt to avoid the consequences of [his] prior
deposition testimony by raising feigned issues of fact” (Taillie v
Rochester Gas & Elec. Corp., 68 AD3d 1808, 1809 [internal quotation
marks omitted]). To the contrary, plaintiff was not asked at his
deposition whether the ditch was obscured by snow, and thus the
statement in his affidavit is merely “ ‘more specific’ ” than his
deposition testimony (Sutin v Pawlus, 105 AD3d 1293, 1295).
Plaintiff’s “affidavit . . . did not flatly contradict his prior
deposition testimony. Therefore, the affidavit should have been
considered in opposition to [the] motion[s]” (Red Zone LLC v
Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1049).

     Finally, McCormick contends that we should affirm the order
because, in its original motion for summary judgment dismissing the
amended complaint against it (McCormick’s motion), it established that
Synergy had assumed sole control of the premises, thus relieving
McCormick from any duty of care. Although the court rejected
McCormick’s contention, we review it as an alternative ground for
affirmance (see generally Parochial Bus Sys. v Board of Educ. of City
of N.Y., 60 NY2d 539, 546). “[T]he successful party, who is not
aggrieved by the judgment or order appealed from and who, therefore,
has no right to bring an appeal, is entitled to raise an error made
below, for review by the appellate court, as long as that error has
been properly preserved and would, if corrected, support a judgment in
his favor” (id. at 545-546). Nevertheless, we reject McCormick’s
contention.

     In order to prevail on its motion, McCormick, as the owner of the
subject premises, was required “to establish, prima facie, that it
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                                                         CA 16-00207

‘relinquished complete control’ over the property such that its duty
to maintain the premises in a reasonably safe condition was
extinguished as a matter of law” (Yehia v Marphil Realty Corp., 130
AD3d 615, 616). “Viewing all of the evidence in the light most
favorable to the plaintiff[s], as we must on this motion for summary
judgment . . . , we cannot say . . . that, as a matter of law,
[McCormick established that it] relinquished complete control of the”
subject premises (Gronski v County of Monroe, 18 NY3d 374, 381, rearg
denied 19 NY3d 856). Consequently, the court properly denied
McCormick’s motion, regardless of the sufficiency of the opposing
papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
