Opinion
2012-07-18
Anna GALLO, appellant, v. HEMPSTEAD TURNPIKE, LLC, et al., respondents.
Neil H. Greenberg, Westbury, N.Y. (Justin M. Reilly of counsel), for appellant. Simmons Jannace, LLP, Syosset, N.Y. (Marvin N. Romero of counsel), for respondents.
Neil H. Greenberg, Westbury, N.Y. (Justin M. Reilly of counsel), for appellant. Simmons Jannace, LLP, Syosset, N.Y. (Marvin N. Romero of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., ARIEL E. BELEN, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (DeStefano, J.), dated July 22, 2011, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages allegedly sustained when she tripped and fell over a concrete barrier that was affixed to a sidewalk and designed to prevent shopping carts from rolling beyond a certain point. The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint.
Although a landowner has a duty to maintain its premises in a reasonably safe manner ( see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868), there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous ( see Neiderbach v. 7–Eleven, Inc., 56 A.D.3d 632, 868 N.Y.S.2d 91;Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767 N.Y.S.2d 40). Generally, a wheel stop which is clearly visible presents no unreasonable risk of harm and, thus, is not inherently dangerous ( see Pipitone v. 7–Eleven, Inc., 67 A.D.3d 879, 880, 889 N.Y.S.2d 234;Cardia v. Willchester Holdings, LLC, 35 A.D.3d 336, 825 N.Y.S.2d 269;Giambruno v. Wilbur F. Breslin Dev. Corp., 56 A.D.3d 520, 867 N.Y.S.2d 202). The defendants made a prima facie showing that the wheel stop over which the plaintiff tripped, which was painted yellow in contrast to the color of the sidewalk to which it was affixed, was not an inherently dangerous condition, and was readily observable to those employing the reasonable use of their senses and, thus, open and obvious ( see Pipitone v. 7–Eleven, Inc., 67 A.D.3d at 880, 889 N.Y.S.2d 234;Giambruno v. Wilbur F. Breslin Dev. Corp., 56 A.D.3d at 521, 867 N.Y.S.2d 202;Albano v. Pete Milano's Discount Wines & Liqs., 43 A.D.3d 966, 966–967, 842 N.Y.S.2d 524;Sclafani v. Washington Mut., 36 A.D.3d 682, 829 N.Y.S.2d 553;Cardia v. Willchester Holdings, LLC, 35 A.D.3d at 337, 825 N.Y.S.2d 269; Zimkind v. Costco Wholesale Corp., 12 A.D.3d 593, 785 N.Y.S.2d 108;Bryant v. Superior Computer Outlet, 5 A.D.3d 343, 772 N.Y.S.2d 529;Simmons v. Sam's E., 293 A.D.2d 596, 740 N.Y.S.2d 218). In opposition, the plaintiff failed to raise a triable issue of fact ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.