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DiGeorgio v. Morotta

47 A.D.3d 752 Court N.Y. App. Div. Decision date 2008-01-22 English

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p. 752
Marilyn DiGeorgio et al., Appellants, v Michael Morotta et al., Respondents.
[850 NYS2d 556]

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Jacobson, J.), dated February 7, 2007, which granted the defendants’ cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendants established their entitlement to summary judgment by submitting evidence demonstrating that the alleged defect, a height differential between the grass and a brick walkway leading from their driveway to the front door of their house, was readily observable by the reasonable use of the injured plaintiffs senses, and was not inherently dangerous (see Errett v Great Neck Park Dist., 40 AD3d 1029 [2007]; Capozzi v Huhne, 14 AD3d 474 [2005]; D’Angelo v DeLucia, 283 AD2d 385 [2001]). Moreover, although the accident occurred in the evening, the evidence demonstrated that the defendants’ outside

p. 753
light was on, and there is no evidence that the injured plaintiff misstepped as the result of inadequate illumination (see Leib v Silo Rest., Inc., 26 AD3d 359 , 360 [2006]; Curran v Esposito, 308 AD2d 428 [2003]; Gordon v New York City Tr. Auth., 267 AD2d 201 , 202 [1999]). The plaintiffs’ opposition papers failed to raise a triable issue of fact. Therefore, the defendants’ cross motion for summary judgment was properly granted. Spolzino, J.P., Skelos, Lifson and McCarthy, JJ., concur.

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