Grisanti v. Pine Hill Concrete Mix Corp.

—Order unanimously affirmed without costs. Memorandum: The parties are adjoining property owners. On June 2, 1991, Martin Grisanti (plaintiff) heard screams of children emanating from a sand and gravel pit (the pit) located on defendant’s property. He entered defendant’s property to investigate the reason for those screams. He climbed upon a berm constructed by defendant around the west side of the pit and ascertained that no one needed any assistance. Plaintiff testified at his deposition that, as he turned around to return to his property, the berm on which he was standing collapsed beneath him, causing him to fall into the pit. Plaintiffs commenced this action to recover damages for personal injuries he allegedly sustained as a result of that fall. After issue was joined and discovery conducted, defendant moved for summary judgment seeking dismissal of the complaint. Supreme Court denied defendant’s motion.

It is undisputed that defendant constructed the berm. The submission in support of defendant’s motion, which included excerpts of plaintiff’s deposition testimony, establishes that issues of fact exist whether defendant, in constructing the berm, exercised reasonable care under all the circumstances to maintain its property in a reasonably safe condition (see, Basso v Miller, 40 NY2d 233, 241; see also, Lewis v Metropolitan Transp. Auth., 64 NY2d 670, affg on opn at 99 AD2d 246, 249-250). (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J.—Summary Judgment.) Present—Pine, J. P., Balio, Fallon, Callahan and Davis, JJ.