Opinion
2013-05-21
Calogera VILLANTI, Plaintiff–Appellant, v. BJ'S WHOLESALE CLUB, INC., Defendant–Respondent.
Diamond & Diamond, LLC, New York (Stuart Diamond of counsel), for appellant. Torino & Bernstein, P.C., Mineola (Ellie S. Konstantatos of counsel), for respondent.
Diamond & Diamond, LLC, New York (Stuart Diamond of counsel), for appellant. Torino & Bernstein, P.C., Mineola (Ellie S. Konstantatos of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, FREEDMAN, GISCHE, JJ.
Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered January 7, 2013, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established its entitlement to judgment as a matter of law, in this action where plaintiff alleges that she was injured when her foot became caught on the leg of the vertical support of a bumper that ran along the bottom of a display case in defendant's store, causing her to fall to the floor. Defendants submitted photographic and testimonial evidence showing that the alleged defective condition was open and obvious, and not inherently dangerous ( see Lazar v. Burger Heaven, 88 A.D.3d 591, 931 N.Y.S.2d 296 [1st Dept. 2011]; Matthews v. Vlad Restoration Ltd., 74 A.D.3d 692, 904 N.Y.S.2d 391 [1st Dept. 2010]; Schulman v. Old Navy/Gap, Inc., 45 A.D.3d 475, 845 N.Y.S.2d 341 [1st Dept. 2007] ).
In opposition, plaintiff failed to raise a triable issue of fact. The fact that the support became obscured from plaintiff's view after she walked to a point where she was inches in front of the fruit display did not render the condition one which was hidden or obscured ( compare Lehr v. Mothers Work, Inc., 73 A.D.3d 564, 903 N.Y.S.2d 345 [1st Dept. 2010] ).