Opinion
5305 Index 21754/13E
12-28-2017
Carol FABER, et al., Plaintiffs–Respondents, v. The PLACE FURNITURE, INC. doing business as The Place Furniture Galleries, et al., Defendants–Appellants.
Faust Goetz Schenker & Blee LLP, New York (Damian F. Fischer of counsel), for appellants. Chiariello & Chiariello, Glen Cove (Gerald Chiariello II of counsel), for respondents.
Faust Goetz Schenker & Blee LLP, New York (Damian F. Fischer of counsel), for appellants.
Chiariello & Chiariello, Glen Cove (Gerald Chiariello II of counsel), for respondents.
Friedman, J.P., Gische, Webber, Kahn, Singh, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 7, 2016, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendants established prima facie entitlement to summary judgment based on evidence that the single 8" step onto the furniture display platform in defendants' showroom—on which plaintiff wife tripped—was an illuminated, open and obvious condition which was readily observable by reasonable use of one's senses ( Schwartz v. Kings Third Ave. Pharmacy, Inc. 116 A.D.3d 474, 984 N.Y.S.2d 13 (1st Dept. 2014) ; Barakos v. Old Heidlberg Corp. 145 A.D.3d 562, 43 N.Y.S.3d 324 (1st Dept. 2016).; Acosta v. Gouverneur Ct. L.P., 133 A.D.3d 470, 18 N.Y.S.3d 865 [1st Dept. 2015] ). Plaintiff wife, together with her family, had navigated the single step onto the furniture display platforms earlier that shopping day, and also during an uneventful visit to the same showroom just a few weeks prior to the date of her accident. There was no evidence to indicate that the single step, in its design, placement and maintenance, was inherently dangerous, and the defendants' use of warning signs to give notice of the step's presence did not, standing alone, render the steps unsafe.
Plaintiffs have not presented any proof that negligence on the part of defendants in the design, construction or maintenance of the subject step contributed to her fall, or that alleged showroom distractions support grounds to find liability on defendants' part under the circumstances presented (see generally Franchini v. American Legion Post, 107 A.D.3d 432, 967 N.Y.S.2d 48 [1st Dept. 2013] ).
The burden having shifted to plaintiffs on the motion, we find their evidence in opposition failed to raise a triable issue of fact.