Opinion
17756/05.
Decided August 16, 2007.
Gusmorino Marx, Esq., Richmond Hill, NY, Attorneys for Plaintiffs.
Wilbur F. Breslin Devel. Corp., Franklin Plaza, Breslin Devel Realty Corp., Law Office of Gould Associates, New York, NY, Attys. for Defendants.
Atty. for Brunjes Blacktop Inc, Ahmuty, Demers McManus, Esqs., Albertson, NY.
Defendant Brunjes Blacktop Inc., moves this Court pursuant to CPLR § 3212 for summary judgment dismissing the complaint and all cross claims insofar as interposed against it.
Defendants Wilbur F. Breslin, et al. Development Corp., Franklin Plaza LLC, and Breslin Realty Development Corp., cross move pursuant to CPLR § 3212 for summary judgment dismissing the complaint and all cross claims insofar as interposed against them.
On October 4, 2004, at approximately 2:15 p.m., the plaintiffs Philip and Marie Giambruno drove their Toyota Corolla to the Franklin Plaza shopping area, located in Franklin Square, New York. Philip Giambruno pulled the Toyota into a front row parking space abutting the sidewalk, in front of which was a white colored, concrete "wheel stop" some six feet in total length (P. Giambruno Dep., 4-6, 45-46; M. Giambruno Dep., 10-11; Def's Exh., "F"). Prior to completing the park, Giambruno pulled forward into the space and impacted the wheel stop, after which he backed up slightly and then turned the engine off (P. Giambruno Dep., 6). Notably, Mrs. Giambruno estimated that she had been to the Franklin Plaza prior to the accident, although "not frequently, perhaps every couple of months * * *" (M. Giambruno Dep., 8, 55, 57).
As she prepared to exit the car, she noticed that there was a "big" SUV parked directly next to her car that was parked close to the white dividing line on the passenger side (M. Giambruno Dep., 46-47). Mrs. Giambruno exited the vehicle from the front passenger side door and proceeded between her car and the SUV toward the curb in order to access the Rite Aid store that she intended to patronize (M. Giambruno Dep., 10-12). As she walked toward the curb area near the front of her car, the tip of her left shoe allegedly came into contact with the wheel stop and she fell forward to the ground (M. Giambruno Dep., 12; 50-51). Mrs. Giambruno testified that she did not notice the wheel stop before she fell (M. Giambruno Dep., 17, 49-50).
After she fell, she called out to her husband, Philip Giambruno, who was exiting on the driver's side of the car, and he came to her assistance (M. Giambruno Dep., 52-53; P. Giambruno Dep.,7-8).Although he has attempted to modify the substance of his testimony in a post-deposition "addendum" sheet (Pltffs' Exh., "D" cf., Gomez v. Rodriguez , 31 AD3d 497, 498, 818 NYS2d 579 (2d Dept., 2006); Perez v. Mekulovic , 13 AD3d 158-159, 789 NYS2d 6 [1st Dept., 2004]), according to Philip Giambruno's transcribed testimony, his wife never actually told him that she tripped over the wheel stop because she "didn't realize" what she "fell over" (P. Giambruno Dep., 8). Mr. Giambruno testified that he assumed she fell over the wheel stop "[b]ecause there was nothing else on the side in front of her" (P. Giambruno Dep., 8-9, 11 but see, P. Giambruno "addendum", dated December 2006.) Mr. Giambruno further testified that after his wife's accident, he noticed that the wheel stop extended about six inches beyond the end of his car of the passenger side where the accident took place (P. Giambruno Dep., 9-10 see also, M. Giambruno Dep., 53).
By summons and complaint dated November, 2005, the plaintiffs commenced the within personal injury action alleging, inter alia, that the defendants negligently "allow[ed] and permitt[ed] a portion of the wheel stop to project into the area * * * where pedestrians are expected to walk * * *" (Cmplt., ¶ 24).
The defendants have answered and denied the material allegations of the complaint.
Discovery has been completed and the defendants now move and cross move for summary judgment dismissing the complaint, arguing in sum that as a matter of law, the wheel stop was open, obvious and presented no inherent danger, thereby entitling them to judgment as a matter of law. The Court agrees.
Although a landowner has a duty to maintain its premises in a reasonably safe manner ( e.g., Basso v Miller , 40 NY2d 233, 241-242, 352 NE2d 868, 386 NYS2d 564 (1976) see also, Maheshwari v. City of New York , 2 NY3d 288, 294, 810 NE2d 894, 778 NYS2d 442), it is settled that there is no duty to protect or warn against an open and obvious condition, which is not inherently dangerous ( Morgan v. TJX Cos., Inc. , 38 AD3d 508, 831 NYS2d 482 (2d Dept., 2007); Wehr v. Long Is. R.R. Co. , 38 AD3d 880, 832 NYS2d 648 (2d Dept., 2007); Sclafani v. Washington Mut. , 36 AD3d 682, 829 NYS2d 553 [2d Dept., 2007]).
Significantly, the Second Department has previously held that, "[a] concrete parking lot divider which is clearly visible presents no unreasonable risk of harm" ( Plessias v. Scalia Home for Funerals , 271 AD2d 423-424, 706 NYS2d 131 (2d Dept., 2000) accord, Sclafani v. Washington Mut., supra. ; Cardia v. Willchester Holdings, LLC , 35 AD3d 336, 825 NYS2d 269 (2d Dept., 2006); Zimkind v. Costco Wholesale Corp. ,12 AD3d 593, 785 NYS2d 108 (2d Dept., 2004); Bryant v. Superior Computer Outlet , 5 AD3d 343, 772 NYS2d 529 (2d Dept., 2004); Murphy v. Kissena Drugs , 4 AD3d 401, 771 NYS2d 358 (2d Dept., 2004) see also, Russo v. Eveco Dev. Corp. , 256 AD2d 566, 683 NYS2d 566 [2d Dept., 1998]).
Here, the movants have established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiffs' deposition testimony and an authenticated photograph of the wheel stop that demonstrates that it was not inherently dangerous and is clearly visible, open and obvious ( Sclafani v. Washington Mut., supra.; Zimkind v. Costco Wholesale Corp., supra. ; Murphy v. Kissena Drugs, supra. ; see also, Morgan v. TJX Cos., Inc., supra. ).
The burden of proof then shifted to the plaintiffs, who have failed to raise a triable issue of fact in connection with their claims ( See, Sclafani v. Washington Mut., supra. ; Casey v. Clemente , 31 AD3d 361, 817 NYS2d 644 (2d Dept., 2006); Zimkind v. Costco Wholesale Corp., supra. ). The assertions of the plaintiffs' expert with respect to the size and color of the wheel stop are unavailing and fail to raise a triable issue of fact with respect to the defendants' assertion that the wheel stop was "readily observable by those employing the reasonable use of their senses and, as a matter of law, was not inherently dangerous" ( Sclafani v. Washington Mut., supra. ; Murphy v. Kissena Drugs, supra., see also , Brown v. Melville Indus. Assoc. , 34 AD3d 611, 823 NYS2d 697 (2d Dept., 2006); Dremeaux v. St. Francis Cemetery , 303 AD2d 542, 756 NYS2d 460 [2d Dept., 2003]).
The Court agrees, moreover, that the unsworn document, entitled the "Slip and Fall Hand Book" — authored by an attorney as part of a "personal injury litigation" series — is lacking in competence and probative import as an opposing, evidentiary submission ( see, Pltffs' Exh., "E", at Appdx).
Although summary judgment is a drastic remedy ( Andre v Pomeroy , 35 NY2d 361, 364, 320 NE2d 853, 362 NYS2d 131), nevertheless a "court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" ( Assing v. United Rubber Supply Co. , 126 AD2d 590, 511 NYS2d 31 (2d Dept., 1987); see, Rotuba Extruders v. Ceppos , 46 NY2d 223, 231, 385 NE2d 1068, 413 NYS2d 141), and where, as here, "there is nothing left to be resolved at trial, the case should be summarily decided" ( Andre v. Pomeroy, supra. , at 364; Sclafani v. Washington Mut., supra. ; Murphy v. Kissena Drugs, supra. , at 402).
Accordingly, it is, ORDERED that motions by the defendants Brunjes Blacktop, Inc., Wilbur F. Breslin, Development Corp., Franklin Plaza, LLC, and Breslin Realty Development Corp., for summary judgment dismissing the complaint are granted.
The foregoing constitutes the Order of this Court.