| Buonchristiano v Fordham Univ. |
| 2017 NY Slip Op 00586 |
| Decided on January 31, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 31, 2017
Mazzarelli, J.P., Manzanet-Daniels, Feinman, Webber, Gesmer, JJ.
2915
v
Fordham University, Defendant-Respondent.
Gentile & Associates, New York (Laura Gentile of counsel), for appellant.
Harrington Ocko & Monk, LLP, White Plains (Dawn M. Foster of counsel), for respondent.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered June 30, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff tripped and fell on a step on a walkway on defendant's premises while crossing the campus during her lunch break. Assuming that defendant established prima facie that the step was open and obvious and not inherently dangerous (see Philips v Paco Lafayette LLC, 106 AD3d 631 [1st Dept 2013]), plaintiff raised a triable issue of fact whether the condition was open and obvious by demonstrating through an expert's affidavit and photographs that the color and position of the step created optical confusion, i.e., "the illusion of a flat surface, visually obscuring ... [the] step[]" (Saretsky v 85 Kenmare Realty Corp., 85 AD3d 89, 92 n [1st Dept 2011]; and see Thornhill v Toys "R" Us NYTEX, 183 AD2d 1071, 1073 [3rd Dept 1992]). Plaintiff's deposition testimony, that she was looking around at trees and flowers as she walked and that the step was invisible, was not inconsistent with her affidavit, in which she explained that she was also looking ahead as she walked down the path, and did not see the step (see Chafoulias v 240 E. 55th St. Tenants Corp., 141 AD2d 207, 211 [1st Dept 1988]; Saretsky, 85 AD3d at 92).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 31, 2017
CLERK