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DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff (Ebner) alleged she did not see the single step down which caused her to fall. The Second Department found that defendant did not prove the step was open and obvious. The handrail was not demonstrated to be a sufficient visual cue:

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Here, in support of its motion for summary judgment, the defendant submitted, among other things, Ebner’s deposition testimony, deposition testimony of certain of the defendant’s employees, and an expert affidavit. Contrary to the defendant’s contention, Ebner identified the cause of her fall as her inability to see the single step on the walkway she was traversing … . The defendant’s submissions failed to eliminate triable issues of fact as to whether the step constituted a dangerous condition or whether the subject step was open and obvious, and not inherently dangerous as a matter of law … . The affidavit of the defendant’s expert failed to establish, as a matter of law, that a handrail that the defendant contends was adjacent to the walkway on the date of the subject accident provided a sufficient visual cue to alert pedestrians to the presence of the step. Furthermore, contrary to the defendant’s assertion, it failed to demonstrate that it did not have constructive notice of the dangerous condition prior to the subject accident … . Ross v Bretton Woods Home Owners Assn., Inc., 2017 NY Slip Op 04482, 2nd Dept 6-7-17

NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE)/SLIP AND FALL ( DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE)

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