Plaintiff alleges that as she entered the restaurant, she tripped on the outside step leading into the restaurant and fell on her right knee. As a result of the accident, plaintiff alleges that she sustained serious injuries.

Defendant Effie Foods now moves for summary judgment pursuant to CPLR §3212 to dismiss the complaint asserting: (1) that there is no evidence presented that the step was dangerous or defective; and in the alternative (2) that it did not create or have notice of the alleged dangerous condition. Defendant Mount Sinai cross-moves for summary judgment pursuant to CPLR §3212 on the grounds that the step is solely controlled and within the responsibility of the co-defendant Effie Foods. Plaintiff cross-moves for leave to amend an/or [*2]supplement her verified bill of particulars pursuant to CPLR § 3025(b) and opposes to the motions to deny.

It is well settled that the proponent of a summary judgment motion must make a prima facie case showing entitlement to judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, 64 NY2d 851[1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557 [1980]). The primary purpose of a summary judgment motion is issue finding, not issue determination (Garcia v J.C. Duggan, Inc., 180 AD2d 579 [1st Dept 1992]).

This Court finds that defendants have made a prima facie case showing entitling them to summary judgment as a matter of law, thereby shifting the burden to plaintiff to demonstrate the existence of material issues of fact.

Here, plaintiff alleges that she tripped because the step was graded, that is, the step was higher on one side than the other, and there were no warnings regarding the step. Addressing plaintiff's contention regarding the graded step, plaintiff cannot sustain a prima facie case based upon a structural defect without an expert affidavit or documentary evidence to support the alleged defect (Belmonte v Metropolitan Life Ins. Co., 304 AD2d 471 [1st Dept 2003]), which was not furnished. Plaintiff seems to abandon this claim in her attorney's affirmation, which provides that "defendants' liability arises from the failure to warn, not their affirmative acts of causing and creating the defect which precipitated Ms. Rothwax to the ground" (Guastaferri Affirmation in Opposition, para. 3).

Addressing plaintiff's contention that the defendants were negligent in failing to warn about the graded step, it is established that the scope of a landowner's duty to maintain the premises in a reasonably safe condition may also include the duty to warn of a dangerous condition (Cupo v Karfunkel, 1 AD3d 48, 51 [2d Dept 2003]). However, there is no duty to warn of an open and obvious condition (id.) "Unless a hazard is latent, a person entering the property is just as aware as the landowner of the condition of the property and the risks associated with it (id.). Here, the evidence submitted, including several photographs of the step and deposition testimony of the parties, establish that the step was readily observable. The photographs show that one side of the vertical portion of the restaurant step is larger where the ground is lower, and smaller on the other side of the step where the ground is higher. Defendant opines that the step is graded to offset the natural uphill incline of the ground in the area along Madison Avenue to make the step horizontally level. As seen in the photograph taken of the restaurant and the other buildings in the area, the ground appears to run up hill on Madison Avenue from the corner of East 98th Street. The photograph also shows that the stores next to the restaurant also have graded entrances, apparently to offset the incline of the street.

It is undisputed that no warnings are required pursuant to any statute or building code, and no violations were ever issued to the defendants regarding the step. There was no evidence [*3]of prior accidents on the step and no complaints received prior to plaintiff's fall. The plaintiff testified that she had entered the restaurant 5 to 10 times prior to her accident and never had any difficulty nor made any complaints with regard to the step or the need for warning signs.

Upon review of the evidence submitted, this Court finds that the graded step was open and obvious, and does not rise to the level of constituting a dangerous condition. Accordingly, plaintiff has failed to establish that material issues of act exist to preclude summary judgment on her negligence claim based on a failure to warn.

For all the foregoing reasons, it is

Ordered that defendants' motion and cross-motion for summary judgment are granted, and it is further

Ordered that plaintiff's cross-motion is denied as moot; and it is further

Ordered that the complaint is dismissed and the Clerk is directed to enter judgment accordingly.

This reflects the decision and order of this Court.



Dated: January 6, 2005

J.S.C.

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