- Court
- New York Supreme Court, Appellate Division, First Department
- Case
- O’Sullivan v. American Golf Corporation
- Date
- June 2, 2026
- Slip Op. No.
- 2026 NY Slip Op 03393
Background
Plaintiff David O’Sullivan alleged that he was injured when his foot caught in a three-to-four-inch gap between two cobblestones in a parking lot owned by defendant American Golf Corporation, doing business as Pelham Bay & Split Rock Golf Course, as he was exiting a bus. O’Sullivan testified that the defect was not readily observable, even though he was looking down as he exited the bus. American Golf moved for summary judgment dismissing the complaint, arguing that the cobblestone gap was an open and obvious condition that was not inherently dangerous. American Golf submitted an expert affidavit stating that there were “no defects” in the cobblestones, though the expert did not address the width or depth of the gaps between them and had inspected the area five years after the accident. The Supreme Court, Bronx County, denied American Golf’s motion, and American Golf appealed.
Holding
The Appellate Division unanimously affirmed the denial of summary judgment. The Court held that American Golf failed to establish prima facie entitlement to summary judgment because it did not show as a matter of law that the gap between the cobblestones was open and obvious and not inherently dangerous. The plaintiff’s testimony that the defect was not readily observable even when he was looking down undermined the open-and-obvious defense. The expert’s affidavit was of limited probative value because the expert did not address the specific width and depth of the gaps and inspected the area five years after the accident without evidence that conditions remained the same. Additionally, the Court found triable issues of fact regarding whether American Golf breached its duty to maintain the parking lot in a reasonably safe condition, noting evidence that the property’s regional manager was aware of complaints about the cobblestones but took no action to address the gaps.
Takeaways
A property owner seeking summary judgment on the basis that an alleged hazard was open and obvious must affirmatively demonstrate both that the condition was readily observable and that it was not inherently dangerous. An expert opinion that simply denies the existence of defects without addressing the specific dimensional characteristics alleged by the plaintiff is insufficient. Moreover, an expert inspection conducted years after the incident has limited probative value absent evidence that the conditions observed were the same as at the time of the accident. Evidence of prior complaints about the same condition can raise triable issues of fact about the owner’s knowledge and failure to remedy.
Why It Matters
This decision provides important guidance for premises liability practitioners on the requirements for establishing the open-and-obvious defense at the summary judgment stage. Property owners must present specific, contemporaneous evidence addressing the exact condition alleged to have caused the injury. General denials of defects, belated inspections, and expert opinions that do not address the plaintiff’s specific allegations will not carry the movant’s burden. The case also highlights the significance of prior complaints and the owner’s actual knowledge of the condition, which can transform a seemingly minor surface irregularity into a triable premises liability claim.