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Krasnow v Varriale 2011 NY Slip Op 33357(U) December 5, 2011 Supreme Court, Nassau County Docket Number: 16758/09 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Short Form Order

SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY
PRESENT:
Honorable Karen

Murphv Justice of the Supreme Court
11

SANDRA KRSNOW,

Index No. 16758/09

Plaintiff(s),

Motion Submitted: 9/21/11 Motion Sequence: 003, 004

-againstPATRICIA A. V ARRLE,
Defendant(s ).

The following papers read on this motion:

Notice of Motion/Order to Show Cause........................ Answering Papers.
Reply............ ....... .......... .......... ............

Briefs: Plaintiff s/Petitioner ' s........................................
Defendant' s/Respondent' s..................................

3212 by defendant Patricia A. Variale for summary judgment dismissing the complaint is granted and the complaint is hereby dismissed.
Motion pursuant to CPLR Cross motion by plaintiff Sandra Krasnow pursuant to CPLR

3126 to strike the

defendant' s answer or , in the alternative , to preclude consideration of defendant's expert'

affidavit in support of defendant's motion for summary judgment pursuant to CPLR 9
31 Ol(d) is

denied.

This action arises from an accident in which plaintiff allegedly sustained injury while at the home of defendant on May 2 , 2009. The incident a guest at a Communion occurred as plaintiff attempted to walk from the kitchen into the sunroom of defendant's home and allegedly was caused to fall as a result of an optical ilusion and/or optical

par

confusion at the location of a four inch

brown wooden step constructed

by defendant

homeowner s husband.

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According to the plaintiff

s expert:

the improper construction ofthe homemade brown wooden step leading from the kitchen to the sunroom is the cause and the origin ofthe subject
occurrence. "

He further opines that:

(a) dangerous condition was created by . . . adding the step in an inappropriate and unsafe manner to wit: having a homemade step
attached to the white saddle providing an inappropriate visual cue. . .
leading persons traversing the area to believe that there was no step. . .

and giving the appearance that the 2- 1/2" outward protrusion from the white saddle was par of the sunroom floor.

Defendant seeks summary judgment dismissing the complaint predicated on the grounds that the subject step/sil/threshold leading from the kitchen into the sunroom constituted an open , obvious condition which was not inherently dangerous.
In opposition to defendant's motion , plaintiff has cross moved to strike defendant's answer or , in the alternative , to preclude consideration of the expert' s affidavit offered in support of defendant' s summar judgment motion and to preclude s(tid expert from testifying on defendant's behalf at trial.

As an initial matter , the court finds no basis to either strike defendant' s answer or preclude consideration of the expert' s affidavit because defendant' s attorney failed to timely disclose that an expert had been retained. Plaintiff maintains that defendant wilfully and deliberately attempted to deceive both plaintiff and the court, and gain a tactical advantage by asserting that an expert had not been retained when the opposite was true. Although he
did not disclose that the services of an engineering expert had been retained prior to the time

plaintiff fied a note of issue on May 3 ,
plaintiffs attorney disputes ,

2011 , defendant's attorney contends ,

which

that an investigator , employed by Cardinal Claim Service retained the expert engineer at the request of defendant homeowner s insurance carrier. Defendant's attorney acknowledges that a more appropriate response to the preliminary conference order would have been expert information wil be provided under separate cover and pursuant to the CPLR' " rather than the one offered which states that" ' defendant

has not retained any expert witness , but defendant reserves the right to do so.
Under the circumstances extant , in the exercise of discretion , the court finds no basis to reject defendant's expert' s affidavit. The court is cognizant that CPLR 931 Ol(d)(l)(i),

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which governs pretrial disclosure of expert testimony, does not establish a specific time
frame for expert witness disclosure. The court , however, has the discretion to preclude (Lucian v. Schwartz, 55 expert testimony for failure to reasonably comply with the statute. 3d 687, 688 , 865 N. S.2d 643 (2d Dept. , 2008)).
Given the conflcting versions ofthe facts

vis-a

visthe

circumstances surrounding the

late disclosure ,

it canot be said that defendant's attorney s explanation for the delay was

unreasonable , that the delay critically undermined plaintiffs abilty to oppose defendant's sumary judgment motion or that plaintiff, who has fully responded to defendant's motion and offered her own expert' s affidavit , would be prejudiced by the court' s consideration of
the expert'

s affidavit.

is charged with the duty to maintain the premises in a reasonably (Katz v. Westchester County Healthcare Corp. 82 A. 3d 712 , 713 , 917 N. Y. S.2d 896 (2d Dept. , 2011 )). Of course , a propert owner may be held liable for damages resulting from a hazardous condition on its premises if it created the hazardous condition or had either actual or constructive notice of the condition in sufficient time to remedy it. 67 N. 2d 836, 837 , 492 N. E.2d 774 (Gordon v. American Museum 501 N:Y. 2d 646 (1986)). To constitute constructive notice the defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit 37 A. D.3d 749, 750 831 defend S.2d 220 (2d Dept. , 2007)). To be entitled to summary judgment in a trip and fall case she maintained the premises in a reasonably show primafacie safe condition and she did not have notice of, or create , a dangerous condition that posed a (Villano v. Strathmore foreseeable risk ofinjury to persons expected to be on the 2d 124 (2d Dept. , 2010)). Terrace Homeowners Assn. , Inc. 76 A. D.3d 1061 , 908 N. A propert owner has no duty, however , to protect or warn against a condition that is not (Neiderbach inherently dangerous and/or is readily observable by the use of one 2d 91 (2d Dept. , 2008)). v. 7-Eleven, Inc. 56 A. D.3d 632 633 , 868 N.
A propert owner
safe condition. of Natural History, nt to discover and remedy it. (Borenkoffv. Old Navy, a defendant is required to that premises. s senses.

Whether a condition is open and obvious cannot be divorced from the surrounding

plaintiff is distracted.

circumstances. A condition that is ordinarily apparent to a person making reasonable use of his senses may be rendered a trap for the unwary where the condition is obscured or the 2d 119 (2d 78 A. D.3d 815 816 , 911 N. Dept. , 2010)). Proof that a dangerous condition is open and obvious merely negates the defendant's obligation to warn ofthe condition but does not necessarily preclude a finding (Cupo ofliabilty against a landowner for failure to maintain the propert in 2d 40 (2d Dept. , 2003)). v. Karfunkel 1 A. D.3d 48 , 52, 767 N.
(Stoppeli v. Yacellda, a safe condition.

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Although the open and obvious nature of a dangerous condition wil not preclude a finding of liabilty against a landowner who causes a foreseeable risk of harm through a failure to maintain the propert in a reasonably safe condition , summary dismissal is appropriate where the complained of condition was both open and obvious and , as a matter (Rao-Boyle v. Alpersteill 44 A. D.3d 1022 , 844 of law , was not inherently S.2d 386 (2d Dept. , 2007)).
dangerous.

Optical confusion such as plaintiff alleges herein occurs when conditions in an area create the ilusion of a flat surface which visually obscures any steps. Findings of liabilty in such a case typically turn on such factors as inadequate warning ofthe drop, coupled with poor lighting, inadequate demarcation between raised and lowered areas or some other Kellmare Realty Corp. 85 A. D.3d 89 st Dept. , 2011). 2d 32 (1 924 N.
distraction or dangerous condition. (Saretsky v. 85

In light of the photographs submitted by plaintiff which show an obvious drop in elevation , and plaintiff s own deposition testimony wherein she admits that at about 1: 15 p.
on May 2 , 2009, she walked from the kitchen into the sunroom , traversing the very same spot

where she later fell without incident , and also states that it was a bright , sunny day and the prima facie area where she fell was clearly visible showing that the step did not constitute a hazardous condition or hidden trap which proximately caused plaintiffs injuries. This was not a situation in which plaintiff failed to detect or was unaware of the elevation differential between the kitchen and sunroom or one in which the area was unlit or dimly lit.
, defendapt homeowner has made a

In opposition , plaintiff has failed to submit evidence sufficient to show that the step prima facie created an optical ilusion or optical confusion so as to defeat showing. The affidavit of plaintiff s expert is speculative , conc1usory and not based on any objective standards or foundational facts. As such , it lacks probative value and is insufficient to defeat defendant' s motion for summar judgment.
defendant's

The foregoing constitutes the Order of this Court.

Dated: December 5

2011

Mineola, N.

ENTERED
DEC 0 9

2011

NASSAU COUNTY

COUTY CLHK' I

OFFICE



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