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EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined that an exposed root in a town park, over which plaintiff tripped and fell, was an open and obvious condition that was not actionable:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property” … . A landowner, however has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the exposed tree root was an open and obvious condition which was inherent or incidental to the nature of the property, and known to [plaintiff] prior to the subject accident … . Moreover, the location of the exposed tree root in relation to the picnic table was both open and obvious and, as a matter of law, not inherently dangerous … . Ibragimov v Town of N. Hempstead, 2018 NY Slip Op 06231, Second Dept 9-26-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/SLIP AND FALL ( EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/TREE ROOTS (SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))

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THE AVAILABILTY OF GOVERNMENT RECORDS ON A PUBLIC WEBSITE DOES NOT SATISFY A FOIL REQUEST; HERE THERE WERE QUESTIONS OF FACT WHETHER THE VILLAGE SHOULD HAVE WORKED WITH THE PETITIONER TO IDENTIFY THE REQUESTED DOCUMENTS (SECOND DEPT).
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Waiver of Right to Appeal Unenforceable.

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