Opinion
10-05-2016
Frances LACERRA, appellant, v. CVS PHARMACY, defendant, Tottenville Commons, LLC, respondent.
Krentsel & Guzman, LLP, New York, NY (Steven E. Krentsel and Julie T. Mark of counsel), for appellant. Brownell Partners PLLC, New York, NY (Shanna R. Torgerson of counsel), for respondent.
Krentsel & Guzman, LLP, New York, NY (Steven E. Krentsel and Julie T. Mark of counsel), for appellant.
Brownell Partners PLLC, New York, NY (Shanna R. Torgerson of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Green, J.), dated May 4, 2015, which granted the motion of the defendant Tottenville Commons, LLC, for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
While a property owner has a duty to maintain its premises in a reasonably safe manner for its patrons (see Basso v. Miller, 40 N.Y.2d 233, 241, 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 is not inherently dangerous (see Gallub v. Popei's Clam Bar, Ltd., of Deer Park, 98 A.D.3d 559, 949 N.Y.S.2d 467 ; Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40 ). “A wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” (Cardia v. Willchester Holdings, LLC, 35 A.D.3d 336, 336, 825 N.Y.S.2d 269 ; see Stern v. River Manor Care Ctr., Inc., 106 A.D.3d 990, 991, 965 N.Y.S.2d 377 ; Gallo v. Hempstead Turnpike, LLC, 97 A.D.3d 723, 948 N.Y.S.2d 660 ; Pipitone v. 7–Eleven, Inc., 67 A.D.3d 879, 889 N.Y.S.2d 234 ; Sclafani v. Washington Mut., 36 A.D.3d 682, 682–683, 829 N.Y.S.2d 553 ; Zimkind v. Costco Wholesale Corp., 12 A.D.3d 593, 594, 785 N.Y.S.2d 108 ).
Here, the defendant Tottenville Commons, LLC, established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony and photographic evidence demonstrating that the plaintiff tripped when her foot came into contact with a wheel stop, which was open and obvious and not inherently dangerous, as she attempted to step over it on the way to her car (see Miller v. Costco Wholesale Corp., 125 A.D.3d 828, 829, 4 N.Y.S.3d 281 ; LiPuma v. J.P. Morgan Chase N.A., 119 A.D.3d 532, 987 N.Y.S.2d 915 ; Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 868, 978 N.Y.S.2d 73 ). The plaintiff's submissions in opposition to the motion, including the affidavit of an expert whose opinions were unsupported by the record and largely refuted by the photographic evidence, were insufficient to raise a triable issue of fact (see Giambruno v. Wilbur F. Breslin Dev. Corp., 56 A.D.3d 520, 521, 867 N.Y.S.2d 202 ; Albano v. Pete Milano's Discount Wines & Liqs., 43 A.D.3d 966, 967, 842 N.Y.S.2d 524 ; Cardia v. Willchester Holdings, LLC, 35 A.D.3d at 337, 825 N.Y.S.2d 269 ).
Accordingly, the Supreme Court properly granted the motion of Tottenville Commons, LLC, for summary judgment dismissing the complaint insofar as asserted against it.