Bevan v. Murray ( 2011 )

It is hereby ordered that the order so appealed from is modified on the law by denying the motions of defendants/third-party plaintiffs and defendant, as well as the cross motion of third-party defendant, reinstating the complaint and the third-party complaint, and vacating that part of the fourth ordering paragraph denying plaintiffs cross motion insofar as it sought leave to amend the complaint and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she fell and struck her head on an unfinished deck at the house of defendants/third-party plaintiffs (defendants). We agree with plaintiff that Supreme Court erred in granting the motions of defendants and defendant Mike Weston, doing business as Weston Contracting (Weston), seeking summary judgment dismissing the complaint, as well as the cross motion of third-party defendant Graywood Properties, LLC (Graywood) seeking summary judgment dismissing the third-party complaint, on the ground that the unfinished deck was an open and obvious risk (see generally Tagle v Jakob, 97 NY2d 165, 169 [2001]). We therefore modify the order accordingly.

In order to construct the deck, Weston removed the exterior staircase that had previously led from the dining room of the house down to the ground. The joists for the deck were in place on the day of plaintiffs accident, and some boards were stacked across the joists in the middle of the deck. Prior to the accident, plaintiff was in the dining room, and she recalls intending to place an inchworm outside that she had discovered on Christine Murray (defendant). Plaintiff has no memory of the accident and, although defendant observed plaintiff stand up to leave with the inchworm, defendant did not see the accident occur. Indeed, defendant did not discover plaintiff sitting on the ground at the far end of the deck, approximately 10 feet away from the house, until after she had cleaned up the dishes, put some things away .in the refrigerator and started loading the dishwasher. In light of the lack of evidence with respect to the actual events that occurred during those moments surrounding plaintiffs accident, it cannot be said that the “only . . . conclusion [that] can be drawn from the established facts” is that the accident occurred in its entirety at the far side of the unfinished deck (Liriano v Hobart Corp., 92 NY2d 232, 242 [1998]).

We note that the court denied that part of plaintiffs cross motion seeking leave to amend the complaint to add Graywood as a defendant, presumably in light of the court’s determination granting the motions of defendants and Weston seeking summary judgment dismissing the complaint against them. We therefore further modify the order by vacating that part of the fourth ordering paragraph denying plaintiff’s cross motion insofar as it sought leave to amend the complaint, and we remit the matter to Supreme Court to determine that part of plaintiffs cross motion.

All concur except Centra, J.P, who dissents in part and votes to affirm in the following memorandum.