Upon the foregoing papers, defendants' motion for summary judgment is granted and the complaint is dismissed.

Plaintiffs commenced this action to recover damages for injuries allegedly sustained by the infant-plaintiff, NATALIE LEVENDOSKY, when she tripped and fell on a rock embedded in a dirt roadway located in the historic section of Richmondtown in Staten Island, New York. It has been

alleged that defendants were negligent in the operation and maintenance of the subject roadway by

(1) permitting the accumulation of rocks, stones or other debris which rendered the roadway hazardous; (2) allowing such hazardous conditions to exist for an unreasonable length of time; (3) [*2]

failing to adequately and properly inspect the location; and (4) failing to provide persons lawfully and properly using said roadway with a reasonable and safe means of passage.

In moving for summary judgment, defendants contend that the subject roadway is actually a dirt path running through the village, and is located in a naturally wooded area intended to recreate and preserve the historical and geological character of 19th century life in Staten Island. As a result, defendants argue that the condition complained of, e.g., a rock imbedded in a dirt path, constitutes a naturally-recurring condition that should be reasonably anticipated by those choosing to tread upon it. In addition, defendants contend that they were not legally obligated to warn the public about the path's condition, which was readily observable by the use of one's senses. Thus, defendants maintain that the offending rock was of a sufficient size to constitute an obvious feature of the terrain. In the alternative, defendants argue that they are immune from liability by virtue of General Obligations Law §9-103.

In opposition, plaintiffs contend that the rock was not readily observable, and was concealed from view under weeds, dirt, gravel and other debris. In addition, plaintiffs contend that the available proof demonstrates that the pathway in question was a means of access to the historic exhibits, rather than a wooded area where rough terrain would be expected.

It is well settled that landowners holding their property open to the public have a general duty to maintain their premises in a reasonably safe condition in order to prevent foreseeable injuries (see Basso v. Miller, 40 NY2d 233). However, a landowner will not be held liable for injuries arising from conditions on the property that are (1) readily observable or (2) "inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it" (Stanton v. Town of Oyster Bay, 2 AD3d 835, 836, lv denied 3 NY3d 604; see Moriello v. Stormville Airport Antique Show & Flea Mkt., 271 AD2d 664).

Here, it is the opinion of this Court that defendants have established their prima facie right to dismissal by demonstrating that the embedded rock was inherent to the nature of the land, and that the condition of the path and the surrounding area rendered its presence foreseeable. In this regard, the affidavit of the HISTORICAL SOCIETY's executive director indicates that "the area is comprised of natural areas with numerous slopes and elevations surrounding its museums and various preserved historical buildings . . . [and that m]any of these . . . wooded areas . . . contain dirt and stone, brush and other natural foliage [that has been] left undisturbed in order to preserve the historic nature of the area as it existed in 19th century Staten Island" (Defendants' Exhibit H).

In opposition, plaintiffs have failed to raise a triable issue (see Alvarez v. Prospect Hosp., 68 NY2d 320). The fact, if it be so, that the path was regularly used by the general public and maintained by defendants' staff does not call into question its primal nature as described in the affidavit of the SOCIETY's executive director. Moreover, while the EBT testimony of a maintenance worker may be sufficient to demonstrate "notice" to the defendants, it does nothing to [*3]establish that the pathway itself was either dangerous or hazardous. In fact, while plaintiffs claim that the rock was not readily observable due to the presence of grass and "clumps" of clay, this claim in no way contradicts the affidavit of the SOCIETY's executive director regarding the overall rustic character of the area or the uneven terrain that was to be reasonably anticipated. This is particularly true of the infant's father, who admitted that he had previously accompanied his disabled daughter on numerous walks through the area.

In light of these findings, the Court need not address the applicability of General Obligations Law §9-103.

Accordingly, it is

ORDERED that defendants' motion is granted, and the complaint is hereby dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

DATED: APR 02 2007/s/

HON. THOMAS P. ALIOTTA, J.S.C.

ASN BY EVE/pt on 4/2/07