Opinion
8856 Index 158968/14
04-02-2019
Damaris VASQUEZ, Plaintiff–Appellant, v. YONKERS RACING CORPORATION, et al., Defendants–Respondents.
Scunziano & Associates, LLC, Brooklyn (Nicholas P. Scunziano of counsel), for appellant. Bleakley Platt & Schmidt, LLP, White Plains (John W. McGowan of counsel), for respondents.
Scunziano & Associates, LLC, Brooklyn (Nicholas P. Scunziano of counsel), for appellant.
Bleakley Platt & Schmidt, LLP, White Plains (John W. McGowan of counsel), for respondents.
Sweeny, J.P., Manzanet–Daniels, Kern, Singh, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered August 16, 2017, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established entitlement to judgment as a matter of law in this action where plaintiff was injured when she fell while attempting to sit down at a slot machine that did not have a chair. Defendants showed that the missing chair was an open and obvious condition that was not inherently dangerous by submitting videotape footage showing the subject slot machine without a chair. Plaintiff also testified that she had previously noticed chairs missing from slot machines at the casino, and that she had been seated next to the subject machine that was without a chair for 20 to 25 minutes before her fall (see Philips v. Paco Lafayette LLC, 106 A.D.3d 631, 966 N.Y.S.2d 400 [1st Dept. 2013] ; Schulman v. Old Navy/The Gap, Inc., 45 A.D.3d 475, 845 N.Y.S.2d 341 [1st Dept. 2007] ).
Plaintiff's opposition failed to raise a triable issue of fact. Her argument that slot machines are distracting to the point of being all-encompassing, is unavailing, as she did not provide any probative evidence as to how distracted a person becomes when she or he uses slot machines. Plaintiff's testimony that she was distracted by the slot machines does not lead to a conclusion that they are so distracting that their mere existence makes an open and obvious condition such as a missing chair any less open and obvious (see Mauriello v. Port Auth. of N.Y. & N.J., 8 A.D.3d 200, 779 N.Y.S.2d 199 [1st Dept. 2004] ). Furthermore, that a similar accident apparently occurred at defendant casino does not lead to the conclusion that a missing chair is a latent or inherently dangerous condition.