Opinion
2011-12-13
Myrsa DAPOLITO, et al., respondents, v. STOP & SHOP SUPERMARKET, appellant.
Torino & Bernstein, P.C., Mineola, N.Y. (Michael A. Amodio and Bruce A. Torino of counsel), for appellant. George F. Sacco, Staten Island, N.Y., for respondents.
Torino & Bernstein, P.C., Mineola, N.Y. (Michael A. Amodio and Bruce A. Torino of counsel), for appellant. George F. Sacco, Staten Island, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated March 29, 2011, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The injured plaintiff allegedly tripped and fell over an empty display platform in between the ends of two aisles at the defendant's supermarket. The platform was about four inches tall, four feet wide, and four to five feet deep. The defendant moved for summary judgment dismissing the complaint, contending that the condition was open and obvious, and not inherently dangerous. The Supreme Court denied the motion. We reverse.
The defendant established, prima facie, that the display platform at issue was open and obvious, and not inherently dangerous ( see Bretts v. Lincoln Plaza Assoc., Inc., 67 A.D.3d 943, 944, 890 N.Y.S.2d 87; Neiderbach v. 7–Eleven, Inc., 56 A.D.3d 632, 868 N.Y.S.2d 91; Tenenbaum v. Best 21 Ltd., 15 A.D.3d 646, 790 N.Y.S.2d 236). In opposition, the plaintiffs failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.