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

1240
CA 13-00822
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.


DENISE F. MCKNIGHT, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GARY COPPOLA, DEFENDANT-RESPONDENT.


THE LAW OFFICES OF JON LOUIS WILSON, LOCKPORT (JON LOUIS WILSON OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICES OF DESTIN SANTACROSE, BUFFALO (DESTIN SANTACROSE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered February 20, 2013 in a personal
injury action. The order granted the motion of defendant for summary
judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when she fell down the basement
stairway at defendant’s residence. The accident occurred when
plaintiff walked down an unlit hallway, intending to open the door to
the first floor bathroom, and instead opened the door to the basement.
Plaintiff moved her hand along the wall inside the basement doorway in
search of a light switch, took a step and fell down the stairs. She
alleges that defendant was negligent in, inter alia, failing to
maintain his property in a reasonably safe condition and failing to
warn her of the danger posed by the basement door, which was next to
the bathroom door and identical in appearance to it.

     Supreme Court erred in granting defendant’s motion for summary
judgment dismissing the complaint. Ordinarily the issue whether a
danger is open and obvious is for the trier of fact (see Tagle v
Jakob, 97 NY2d 165, 169; Sniatecki v Violet Realty, Inc., 98 AD3d
1316, 1319), and defendant’s own submissions raise triable issues of
fact whether the danger posed by the proximity and appearance of the
bathroom and basement doors was open and obvious (cf. Koval v Markley,
93 AD3d 1171, 1171-1172; see generally Quinlan v Cecchini, 41 NY2d
686, 690; Christianson v Breen, 288 NY 435, 437-438; Pollack v Klein,
39 AD3d 730, 730-731). In addition, defendant did not meet his burden
of establishing that he discharged his “ ‘broader duty’ ” to maintain
                                 -2-                          1240
                                                         CA 13-00822

the property in a reasonably safe condition (Juoniene v H.R.H. Constr.
Corp., 6 AD3d 199, 201; see generally Cohen v Shopwell, Inc., 309 AD2d
560, 561-562), or that plaintiff’s conduct was the sole proximate
cause of her fall (see Sniatecki, 98 AD3d at 1319; Mooney v Petro,
Inc., 51 AD3d 746, 747).




Entered:   January 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
