Upon the foregoing papers, defendant Bais Blima Sarah (BBS) moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing plaintiff's complaint.

The instant motion arises out of a lawsuit, commenced by plaintiff Abraham Perlstein, to recover damages for personal injuries allegedly sustained after falling in an area of defendant's sidewalk that was undergoing repair and where sections of that sidewalk had been removed by defendant. According to plaintiff's deposition testimony, the accident occurred on April 13, 2010, [*2]in the vicinity of defendant's premises, a building located at 575 Bedford Avenue in Brooklyn, New York. The premises are on the corner of Bedford Avenue and Keap Street.

According to plaintiff's testimony, as he was walking on Keap Street, he observed that the sidewalk had an area that was roped off with plastic tape, which he walked to the right side of. A photograph attached to defendant's papers depicts yellow caution tape attached to narrow metal poles, adjacent to an area where the sidewalk sections end and a gravel subsurface is exposed. At his deposition, plaintiff testified as to, and, when shown the photograph, indicated thereon, the exposed area as the location where his fall occurred.

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]).

In support of its motion, defendant contends that there is no evidence, and only speculation, that it was somehow negligent. It cites plaintiff's testimony that at the time he saw the "barricade," he did not look at the sidewalk to see why it was barricaded, and contends both that the condition was open and obvious, and plaintiff was on notice of the barrier and stepped around it into the area of broken sidewalk. Such contentions are speculative and insufficient to support defendant's initial burden, mandating denial of its motion.

"A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk. Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally. The scope of any such duty of care varies with the foreseeability of the possible harm" (Cupo v Karfunkel, 1 AD3d 48, 51 [2003] [citations and internal quotation marks omitted]). It is the landowner's burden "to demonstrate that he or she exercised reasonable care under the circumstances to...make the property safe." (Id. at 52).

Here, the facts, which involve allegations that the plaintiff's accident occurred at nighttime, "do not compel the conclusion that the [defective sidewalk] was an open and obvious condition that could not be reasonably overlooked (Juoniene v H.R.H. Construction, 6 AD3d 199, 200 [2004]). Moreover, evidence that the dangerous condition was open and obvious, even if shown, cannot relieve the landowner of its burden of exercising reasonable care, and "proof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff's comparative negligence" (Id. at 52; see also DiVietro v Gould Palisades, Corp., 4 AD3d 324 [question of fact raised by plaintiff's claim that defendants failed to keep the premises in a reasonably safe condition during construction, and that the condition was open and obvious merely creates an [*3]issue as to the injured plaintiff's comparative negligence]; see also Cohen v Shopwell, Inc., 309 AD2d 560, 562 [2003] ["(t)he duty to maintain premises in a reasonably safe condition is analytically distinct from the duty to warn, and...liability may be premised on a breach of the duty to maintain reasonably safe conditions even where the obviousness of the risk negates any duty to warn"]).

Here, defendant argues, in conclusory language and in the face of clear evidence that it created the hazardous condition,^[FN1] that the condition was open and obvious and that reasonable measures were taken to protect the work site and warn passers-by. However, even allowing defendant the widest possible latitude regarding its contention that it maintained its premises reasonably, the deposition testimony of Zalmen Horowitz, upon which the defendant relies, fails to establish as a matter of law that adequate, or even reasonable means to warn were employed, as it only shows that caution tape was attached to poles sometime within a five-day period before the contractor could pour new concrete. The record is devoid of any independent evidence which shows the location or reveals the placement of the yellow caution tape so as to demonstrate defendant's compliance with its duty to warn of the existence of the hazardous condition (see Tagle v Jakob, 97 NY2d 165 [2001]).

In view of the defendant's failure to meet its initial burden, it is unnecessary to consider whether plaintiff has raised an issue of fact (see Brathwaite v New York Central Mut. Fire Ins. Co., 13 AD3d 405, 406 [2004]), and the defendant's motion for summary judgment is denied.

The foregoing constitutes the Decision and Order of the court.

E N T E R,

J. S. C.