Summary
In Franchini v American Legion Post, 107 AD3d 432 (1st Dept 2013), upon which Defendants rely, plaintiff tripped over a single step which separated a catering facility from a patio.
Summary of this case from Shapiro v. N. 43rd, LLCOpinion
2013-06-6
Marion FRANCHINI, Plaintiff–Appellant, v. AMERICAN LEGION POST, Defendant–Respondent.
Pirrotti & Glatt Law Firm PLLC, Scarsdale (Anthony Pirrotti, Jr. of counsel), for appellant. Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas Hurzeler of counsel), for respondent.
Pirrotti & Glatt Law Firm PLLC, Scarsdale (Anthony Pirrotti, Jr. of counsel), for appellant. Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas Hurzeler of counsel), for respondent.
GONZALEZ, P.J., SWEENY, RICHTER, CLARK, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered May 29, 2012, 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, after exiting a door of defendant's catering facility, she tripped over a single step that separated the area where the door was located from a patio. Defendant submitted evidence, both testimonial and photographic, demonstrating that the step was open and obvious and not inherently dangerous ( see Remes v. 513 W. 26th Realty, LLC, 73 A.D.3d 665, 666, 903 N.Y.S.2d 8 [1st Dept. 2010] ).
Plaintiff's opposition failed to raise a triable issue of fact. The record fails to support plaintiff's argument that the concrete step created an optical confusion, since it was a different color than the tiled floor ( see Langer v. 116 Lexington Ave., Inc., 92 A.D.3d 597, 599–600, 939 N.Y.S.2d 370 [1st Dept. 2012] ). Although there were people present attending a party, there was no evidence that their presence rendered the step dangerous ( compare Cassone v. State of New York, 85 A.D.3d 837, 925 N.Y.S.2d 197 [2d Dept. 2011] ). Indeed, plaintiff testified that she did not see the step because she was looking straight ahead at a friend when she fell ( see Outlaw v. Citibank, N.A., 35 A.D.3d 564, 565, 826 N.Y.S.2d 642 [2d Dept. 2006] ).
Plaintiff's reliance on the unsworn report of her expert is unavailing. The expertfailed to identify any applicable code, regulation or industry standards that were violated ( see Boatwright v. New York City Tr. Auth., 304 A.D.2d 421, 758 N.Y.S.2d 307 [1st Dept. 2003] ).
Plaintiff's argument that the stainless steel trough into which she fell created a dangerous condition is raised for the first time on appeal and therefore we decline to consider it ( see e.g. Bitter v. Renzo, 101 A.D.3d 465, 955 N.Y.S.2d 332 [1st Dept. 2012] ). In any event, the trough did not cause the accident or present a foreseeable risk of harm ( see e.g. Shatz v. Kutshers Country Club, 247 A.D.2d 375, 668 N.Y.S.2d 643 [2d Dept. 1998] ).
We have considered plaintiff's remaining arguments, including that defendant had notice of the allegedly defective condition of the step and trough, and find them unavailing.