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

277
CA 15-00759
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.


SHARON JORDAN-PARKER AND CLARK PARKER,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, ET AL., DEFENDANTS,
AND DESTRO & BROTHERS CONCRETE COMPANY, INC.,
DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


LAW OFFICES OF EUGENE C. TENNEY, PLLC, BUFFALO (NATHAN C. DOCTOR OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (ALYSSA L. JORDAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered February 25, 2015. The order granted the
motion of defendant Destro & Brothers Concrete Company, Inc., for
summary judgment.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Sharon Jordan-Parker (plaintiff) when she
tripped and fell over the base of a construction sign that had been
placed on the sidewalk near the corner of South Park Avenue and
Dorrance Avenue in Buffalo. The sign had been used in connection with
a construction project undertaken by defendant City of Buffalo (City).
Defendant Destro & Brothers Concrete Company, Inc. (Destro) was the
general contractor and defendant DiDonato Associates, P.E., P.C.
(DiDonato) was the consultant engineer on the project. Destro moved
for summary judgment dismissing the complaint against it, and DiDonato
and the City moved for summary judgment dismissing the complaint and
cross claims against them. Supreme Court, in separate orders, granted
the motions of Destro (appeal No. 1), DiDonato (appeal No.2), and the
City (appeal No. 3). We affirm in all three appeals.

     Defendants met their initial burden on their respective motions
of establishing as a matter of law that the condition that caused
plaintiff’s injury was open and obvious and not inherently dangerous
(see Koepke v Deer Hills Hardware, Inc. 118 AD3d 957, 958).
Defendants submitted, inter alia, the deposition of plaintiff, wherein
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                                                         CA 15-00759

she testified that she noticed the base of the sign immediately before
she fell (see Kaufmann v Lerner N.Y., Inc., 41 AD3d 660, 661; Connor v
Taylor Rental Ctr., 278 AD2d 270, 270), and photographs of the
accident scene showing that there was sufficient room on the sidewalk
to allow pedestrians to avoid the base of the sign (see Lazar v Burger
Heaven, 88 AD3d 591, 591). In opposition to the motion, plaintiffs
asserted that defendants failed to comply with regulations applicable
to the project, but their unsubstantiated and nonspecific assertions
in that regard were insufficient to raise a triable issue of fact (see
generally Matthews v Vlad Restoration Ltd., 74 AD3d 692, 693).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
