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

188
CA 11-01477
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


CATHERINE KOVAL, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

EDWINA MARKLEY, DEFENDANT-RESPONDENT.


FINKELSTEIN & PARTNERS, LLP, NEWBURGH (VICTORIA LIGHTCAP OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, ROCHESTER (PAUL A. SANDERS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered January 11, 2011 in a personal injury action.
The order granted the motion of defendant for summary judgment and
dismissed the complaint.

     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 sustained when she fell down the basement staircase at
defendant’s home. Plaintiff used the bathroom in defendant’s home
upon her arrival, and she returned down the same hallway to use the
bathroom several hours later. Although the hallway was dark at that
time, plaintiff did not ask defendant where a light switch was
located, nor did plaintiff attempt to find one. Plaintiff proceeded
to open a door in the hallway to what she believed to be the bathroom,
but the door led to the basement stairs. She then entered the doorway
and fell down those stairs. Defendant moved for summary judgment
dismissing the complaint on the grounds that there were no defects on
her property that caused or contributed to plaintiff’s injuries and
that defendant had no duty to warn plaintiff of the unlit basement
staircase. We conclude that Supreme Court properly granted
defendant’s motion.

     Contrary to plaintiff’s contention, her conduct in opening the
basement door and entering the unlit staircase resulted in an open and
obvious danger of which defendant had no duty to warn (see Tagle v
Jakob, 97 NY2d 165, 169; Duclos v County of Monroe, 258 AD2d 925; cf.
Pollack v Klein, 39 AD3d 730). Indeed, plaintiff had used the
bathroom earlier during her visit. Moreover, plaintiff recognized
that the door to the basement opened in a different manner than the
door to the bathroom that she had used earlier, but she failed to turn
                                 -2-                          188
                                                        CA 11-01477

on any of the available lights in the hallway. We reject plaintiff’s
further contention that defendant failed to instruct her in a proper
manner regarding how to navigate the hallway to the bathroom. There
is no evidence in the record that defendant gave any erroneous
directions to plaintiff (cf. Guenzberg v Heyman, 5 AD2d 766, lv denied
4 NY2d 676).




Entered:   March 16, 2012                      Frances E. Cafarell
                                               Clerk of the Court
