Opinion
2012-08-8
Frances GALLUB, et al., appellants, v. POPEI'S CLAM BAR, LTD., OF DEER PARK, et al., respondents, et al., defendant (and a third-party action).
Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm, Linda M. Brown, and Howard S. Edinburgh of counsel), for appellants. McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy and Barry L. Manus of counsel), for respondents Popei's Clam Bar, Ltd., of Deer Park and Grand Realty Blvd., Inc.
Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm, Linda M. Brown, and Howard S. Edinburgh of counsel), for appellants. McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy and Barry L. Manus of counsel), for respondents Popei's Clam Bar, Ltd., of Deer Park and Grand Realty Blvd., Inc.
Gartner & Bloom, P.C., New York, N.Y. (Christine M. Messina of counsel), for respondent Aventura Construction Services, LLC.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injures, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered May 10, 2011, as granted the motion of the defendants Popei's Clam Bar, Ltd., of Deer Park and Grand Realty Blvd., Inc., and the separate motion of the defendant Aventura Construction Services, LLC, for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants Popei's Clam Bar, Ltd., of Deer Park and Grand Realty Blvd., Inc., and the defendant Aventura Construction Services, LLC, appearing separately and filing separate briefs.
While a landowner has a duty to maintain its premises in a reasonably safe manner for its patrons ( see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868;Katz v. Westchester County Healthcare Corp., 82 A.D.3d 712, 713, 917 N.Y.S.2d 896), there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous ( see Pipitone v. 7–Eleven, Inc., 67 A.D.3d 879, 889 N.Y.S.2d 234;Giambruno v. Wilbur F. Breslin Dev. Corp., 56 A.D.3d 520, 521, 867 N.Y.S.2d 202;Gagliardi v. Walmart Stores, Inc., 52 A.D.3d 777, 860 N.Y.S.2d 207;Sclafani v. Washington Mut., 36 A.D.3d 682, 829 N.Y.S.2d 553;Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40). Generally, “[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” ( Cardia v. Willchester Holdings, LLC, 35 A.D.3d 336, 336, 825 N.Y.S.2d 269;see Pipitone v. 7–Eleven, Inc., 67 A.D.3d at 880, 889 N.Y.S.2d 234; Giambruno v. Wilbur F. Breslin Dev. Corp., 56 A.D.3d at 520, 867 N.Y.S.2d 202;Albano v. Pete Milano's Discount Wines & Liqs., 43 A.D.3d 966, 966–967, 842 N.Y.S.2d 524).
In support of their respective motions, the defendants Popei's Clam Bar, Ltd., of Deer Park and Grand Realty Blvd., Inc., and the defendant Aventura Construction Services, LLC, submitted, inter alia, the transcript of the injured plaintiff's deposition, at which she testified that she was injured when she tripped over a wheel stop in a restaurant parking lot. She testified that the accident occurred just after noon on a sunny day, and that nothing obstructed her vision at the time of the accident. The injured plaintiff had been to the restaurant on numerous occasions, and admitted that she had probably seen wheel stops in the parking lot in the past. She described the wheel stop she tripped over as being black with reflective yellow material, and stated that a photograph of the wheel stop submitted by the defendants fairly and accurately depicted the wheel stop on the date of the accident. A review of that photograph in the record clearly shows that the wheel stop, as it existed on the date of the accident, was open and obvious and not inherently dangerous.
Under the circumstances, the defendants established, prima facie, that the wheel stop over which the injured plaintiff tripped was open and obvious, and was not inherently dangerous ( see Pipitone v. 7–Eleven, Inc., 67 A.D.3d at 880, 889 N.Y.S.2d 234;Giambruno v. Wilbur F. Breslin Dev. Corp., 56 A.D.3d at 521, 867 N.Y.S.2d 202;Gagliardi v. Walmart Stores, Inc., 52 A.D.3d at 777, 860 N.Y.S.2d 207;Sclafani v. Washington Mut., 36 A.D.3d at 682, 829 N.Y.S.2d 553;Gaines v. Shell–Mar Foods, Inc., 21 A.D.3d 986, 987, 801 N.Y.S.2d 376). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the subject motions for summary judgment.