Opinion
352
March 4, 2003.
Order, Supreme Court, Bronx County (Alan Saks, J.), entered April 22, 2002, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Carol R. Finocchio, for plaintiff-respondent.
Robert M. Ortiz, for defendant-appellant.
Before: Andrias, J.P., Saxe, Rosenberger, Williams, Gonzalez, JJ.
Defendant fails to establish that, under the circumstances prevailing at its store just two days before Christmas, the rack over which plaintiff tripped, three feet wide by four feet long but only a few inches high, was so readily observable as to warrant summary judgment in its favor. Defendant's contention that it had no notice of the dangerous condition is improperly raised for the first time on appeal, and we decline to consider it.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.