Summary
granting summary judgment against plaintiff who injured her knee against the corner of a bench on which she had just been sitting, on the ground that plaintiff had "failed to observe an open and obvious condition"
Summary of this case from RAMOS v. SEARS/KMARTOpinion
2001-00795
Argued February 5, 2002.
March 5, 2002.
In an action to recover damages for personal injuries, the defendant Sunbury Footaction, Inc., appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated November 30, 2000, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
McAndrew, Conboy Prisco, Woodbury, N.Y. (Robert M. Ortiz of counsel), for appellant.
Miller Goldman, P.C., New York, N.Y. (Julie L. Miller and Linda A. Goldman of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.
After the appellant established its prima facie entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. The plaintiff testified at her examination before trial that she entered the appellant's store and walked directly to a bench in front of a wall displaying sneakers. After sitting on the bench for approximately 20 minutes, the plaintiff stood up, looked to her right, straight at the cashier, took a step or two, and struck her right knee on the corner of the bench on which she had been sitting. The plaintiff's injury occurred because she failed to observe an open and obvious condition, namely, the bench she had been sitting on (see, Maravalli v. Home Depot USA, 266 A.D.2d 437; Lamia v. Federated Department Stores, 263 A.D.2d 498; Binensztok v. Marshall Stores, 228 A.D.2d 534, 535). Under these circumstances involving an open and obvious condition, there was no triable issue of fact, and the Supreme Court should have granted the appellant's motion for summary judgment (see, Meyer v. Tyner, 273 A.D.2d 364).
ALTMAN, J.P., ADAMS, TOWNES and CRANE, JJ., concur.