The following papers number 1 to 5 were marked fully submitted on the 8th day of April, 2013:

Pages

Numbered

Notice of Motion for Summary Judgment

by Defendants S. Di Fazio and Sons Construction, Inc.

and Ravine Construction, Inc., with Supporting Papers and Exhibits

(dated January 31, 2013)........................................................................................1

Notice of Cross Motion for Summary Judgment

by Defendant the City of New York,

with Supporting Papers and Exhibits

(dated February 6, 2013)........................................................................................2

Affirmation in Opposition to Summary Judgment

by Plaintiff, with Supporting Papers and Exhibits

(dated March 11, 2013)..........................................................................................3

Affirmation in Reply

by Defendant the City of New York

(dated March 13, 2013)..........................................................................................4

Reply Affirmation

by Defendants S. Di Fazio and Sons Construction, Inc.

and Ravine Construction, Inc. [*2]

(dated March 25, 2013).........................................................................................5

Upon the foregoing papers, the motion (No. 009) by defendants S. DiFazio and Sons Construction, Inc. (hereinafter "DiFazio") and Ravine Construction, Inc. (hereinafter "RCI") is denied, as is the cross motion (No. 010) for like relief by defendant the City of New York (hereinafter the "City").

In this consolidated personal injury and medical malpractice action, plaintiff claims that on September 27, 2002, she was negligently caused to trip-and-fall due to a "defect in a sidewalk between a flag of a sidewalk where it meets the apron of the driveway in front of 121 Main Street, Staten Island, New York" (see Plaintiff's Bill of Particulars, paras 2-3). According to the Bill of Particulars, the cross-moving defendants were negligent "in failing to properly barricade the premises to prevent pedestrians from using them [and] in creating the appearance that the sidewalk was safe to use" (id. at 4). As a result, plaintiff claims to have sustained various injuries to her lumbar region, necessitating a spinal fusion performed by defendant Dr. Kaushik Das at defendant St. Vincent's Hospital and Medical Center (id. at 9). Plaintiff further claims that she was subsequently forced to undergo a second surgery consisting of a re-opening and re-exploration of said spinal fusion (id.).^[FN1]

At her deposition, plaintiff testified that at approximately 8:00 p.m. on the date of her accident, she was walking along Main Street with her friend in the direction of Craig Street (see EBT of Plaintiff, pp 13-14, 42). Upon crossing the intersection of Main Street and Arthur Kill Road, the pedestrians encountered a barricade blocking the sidewalk, so they "stayed in the street due to the construction right on the corner" (id. at 16, 31, 42). As they proceeded to walk in the street, barricades and poles on their left side continued to block access to the sidewalk (id. at 43). The barricades ended at the beginning of the driveway abutting 121 Main Street (id. at 67), where a yellow construction vehicle was parked on the street in front (id. at 53, 67-68). Although there were streetlights located in the area, plaintiff recalled that the night was dark (id. at 53-54). As plaintiff attempted to return to the sidewalk by walking up the driveway to 121 Main Street (id. at 16-17), she purportedly tripped and fell on a raised "part of the concrete" at the point "where the sidewalk meets the driveway" (id. at 19, 21-22, 72-73). While plaintiff admitted that the sidewalk on the right side of Main Street was available for use (id. at 66), she did not recall seeing any signage on the left side which read "sidewalk closed use other side" (id. at 93).

Also before the Court are copies of photographs which plaintiff identified at her deposition as accurately depicting the accident location (id. at 37; see Defendant RCI's Exhibit "G").

Cynthia Howard, a record searcher employed by the City's Department of Transportation Litigation Support Unit was deposed on its behalf. According to the witness, she conducted a search for, inter alia, permits, repair orders, contracts, complaints and sidewalk violations for Main Street between Arthur Kill Road and Eden Court for the two years prior to and including September 27, 2002, the date of the accident (see EBT of Cynthia Howard, pp 9, 13). The results of the search revealed three permits and a map provided by the Big Apple Pothole Sidewalk Protection Corporation (id. at 13-14). Two of the permits were granted to defendant DiFazio and were stated to be valid for the period commencing September 23, 2002 until November 18, 2002 (id. at 24, 26-[*3]27).^[FN2] One permit allowed said defendant to "open [the] roadway and/or sidewalk" for the purpose of "major reconstruction [and] street improvement" on Amboy Road (id. at 26-27). The other permit pertained to the "roadway and/or sidewalk [in front] of 143 Main Street between Arthur Kill Road and Eden Court" to a maximum length of "six feet" (id. at 28). Said permit contained a stipulation requiring DiFazio to "[p]ost signs meeting NYC DOT specifications for directing pedestrians to opposite sidewalks. Signs must be posted at work zones as well as both intersections of affected sidewalk"(id. at 34). Other than these documents, the witness did not find any corrective action report or notice of violations, repair orders or sidewalk violations affecting the area where plaintiff fell (id. at 15, 35).

Joseph Izzo testified on behalf of defendant RCI, DiFazio's subcontractor for the reconstruction project (see EBT of Joseph Izzo, pp 26-29). According to this witness, RCI began work at the Arthur Kill Road site on September 27, 2002 (id. at 43-45). On the same date, RCI allegedly laid out the "maintenance and protection of traffic barricades", which "were placed in the street." As explained, these "timber barricades, that were 12 inches by 12 inches made out of timber, approximately 16 feet long each... [were] painted orange and white, and every three feet [were] attached to... a pole, a two by four post, that was also painted orange and white [... In addition,] there were... plastic safety drums, along with construction signage warning the public that the sidewalks were closed. Also [present was] a metal barricade on each end of this work site, that's known also as a pedestrian barricade, with the appropriate signage attached to that as well" (id. at 45-46). The pedestrian barricade was placed "at the beginning and the end of the work site informing the pedestrian public that the sidewalk is closed and to use the other side of the street" (id. at 66, 81). The standard practice of construction barricading, as required in the permits, is set forth in the City's manual for Uniformed (sic) Traffic Control Safety Devices (id. at 64). Although yellow caution tape was supposed to be placed between the poles where there was a gap between the barricades, the witness could not recall whether there was yellow caution tape across the driveway where the subject accident occurred (id. at 125).

In support of their respective motions for summary judgment, defendants argue, inter alia, that the sole proximate cause of plaintiff's injuries was her own reckless conduct in disregarding an obvious danger.^[FN3]

Establishing that a hazardous condition is open and obvious relieves a party charged with maintaining the premises of the duty to warn, but does not abate the duty to maintain the premises in a reasonably safe condition (see DiVietro v. Gould Palisades Corp, 4 AD3d 324 [2nd Dept 2004]). Accordingly, where a dangerous condition exists on the property, the fact (if it be so) that the condition was open and obvious will not relieve a party of its burden of demonstrating that he or she exercised reasonable care under the circumstances to make the property safe, based upon such factors as the likelihood of injury to those entering the property and the burden of avoiding the risk (id. at 325).

For a condition to be open and obvious as a matter of law, it must be one that could not be overlooked by any observer reasonably using his or her ordinary senses (see Tagle v. Jakob, 97 NY2d 165 [2001]; Garrido v. City of New York, 9 AD3d 267 [1st Dept 2004]). Ordinarily, this presents a question for the trier of fact (see Tagle v. Jakob, 97 NY2d at 169), as does the [*4]reasonableness of a party's broader duty to maintain premises in a reasonably safe condition (see Garrido v. City of New York, 9 AD3d at 268; cf. Arsenault v. State of New York, 96 AD3d 97, 104 [3rd Dept 2012]).

Here, the defendants failed to establish their entitlement to judgment as a matter of law. To the contrary, based on the deposition testimony of the relevant parties and copies of the photographs of the accident site, a question of fact has been shown to exist regarding the cross-moving defendants' exercise of reasonable care under the circumstances to secure so much of the construction site as included the allegedly un-barricaded area containing the section of defective sidewalk, or breach of their broader duty to maintain the premises in a reasonably safe condition. That the condition may have been open and obvious merely creates an issue as to the injured plaintiff's comparative negligence (see DiVietro v. Gould Palisades Corp, 4 AD3d at 326).

Accordingly, it is

ORDERED that the motion and cross motion for summary judgment by defendants S. Di Fazio and Sons Construction, Inc. and Ravine Construction, Inc., and the City of New York are denied.

ENTER,

__/S/_______________________

HON. THOMAS P. ALIOTTA

J.S.C.

DATED:MAY 21, 2013