Opinion
08-25-2016
Antoinette Sardina PINKHAM, Plaintiff–Respondent, v. WEST ELM doing business as Williams–Sonoma Stores, Inc., et al., Defendants–Appellants.
McAndrew, Conboy & Prisco, Melville (Michael J. Prisco of counsel), for appellants. The Dweck Law Firm, LLP, New York (H.P. Sean Dweck of counsel), for respondent.
McAndrew, Conboy & Prisco, Melville (Michael J. Prisco of counsel), for appellants.
The Dweck Law Firm, LLP, New York (H.P. Sean Dweck of counsel), for respondent.
SWEENY, J.P., ACOSTA, FEINMAN, KAPNICK, KAHN, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 15, 2016, which, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendants established entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she fell off an elevated display platform in defendants' store. Defendants submitted evidence demonstrating that the platform and steps leading to the platform were not dangerous conditions as a matter of law through photographic evidence showing that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also showed that the steps were well lit and free of debris (see Langer v. 116 Lexington Ave., Inc., 92 A.D.3d 597, 599, 939 N.Y.S.2d 370 [1st Dept.2012], lv. denied 24 N.Y.3d 907, 2014 WL 5369099 [2014] ).
Furthermore, plaintiff testified that she turned and stepped without looking down because she was seeking a sales associate and that the steps played no part in her fall (see Baker v. Roman Catholic Church of the Holy See, 136 A.D.3d 596, 597, 26 N.Y.S.3d 48 [1st Dept.2016] ; Franchini v. American Legion Post, 107 A.D.3d 432, 967 N.Y.S.2d 48 [1st Dept.2013] ). Thus, defendants met their initial burden of showing that they neither created a dangerous condition at the platform and steps, nor had actual or constructive notice of such a condition (see Rodriguez v. 705–7 E. 179th St. Hous. Dev. Fund Corp., 79 A.D.3d 518, 519, 913 N.Y.S.2d 189 [1st Dept.2010] ).
In opposition, plaintiff failed to raise a triable issue. The report of plaintiff's expert relies upon the expert's theories of violation of the New Jersey Handicap Accessibility Code and optical confusion due to the monochromatic floor covering used on the platform and steps. However, plaintiff improperly raised these issues for the first time in response to defendants' motion for summary judgment, as both her complaint and the bill of particulars fail to allege either of these theories (see Ceron v. Yeshiva Univ., 126 A.D.3d 630, 632–633, 7 N.Y.S.3d 66 [1st Dept.2015] ; Atkins v. Beth Abraham Health Servs., 133 A.D.3d 491, 492, 20 N.Y.S.3d 33 [1st Dept.2015] ).