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Ruiz v. 221-223 E. 28th St., LLC

Supreme Court, Appellate Division, First Department, New York.
Oct 18, 2016
143 A.D.3d 553 (N.Y. App. Div. 2016)

Summary

In Evlin Ruiz v. 221-223 E. 28th St.. LLC, 143 A.D.3d 553 [ A.D. 1st Dept 2016 ], the plaintiffs foot caught one of the garbage bags piled five feet high on the sidewalk resulting in her fall.

Summary of this case from Dugan v. Port Auth. of N.Y. & N.J.

Opinion

10-18-2016

Evlin RUIZ, et al., Plaintiffs–Appellants, v. 221–223 E. 28TH ST., LLC, Defendant–Respondent.

Reingold & Tucker, Brooklyn (Abraham Reingold of counsel), for appellants. Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent.


Reingold & Tucker, Brooklyn (Abraham Reingold of counsel), for appellants.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent.

FRIEDMAN, J.P., ANDRIAS, SAXE, FEINMAN, KAHN, JJ.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered December 15, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In support of its motion, defendant submitted evidence that, at the time of plaintiff's accident, there were at least 30 garbage bags piled in three rows about five feet high near a fire hydrant on the sidewalk in front of defendant's building. The bags were “unopened” and “tightened,” and there was enough room on the sidewalk for at least one person to pass by, unobstructed. Plaintiff's foot caught on one of the bags, she tripped forward, and she then slipped on what she believed was water, falling forward and injuring her arm.

The foregoing establishes defendant's prima facie entitlement to summary judgment, on the ground that the garbage bags constituted an open and obvious condition and were not inherently dangerous (see Lazar v. Burger Heaven, 88 A.D.3d 591, 591, 931 N.Y.S.2d 296 [1st Dept.2011] ; Bisogno v. 333 Tenants Corp. Co–Op, 72 A.D.3d 555, 556, 898 N.Y.S.2d 459 [1st Dept.2010] ; Rogers v. Spirit Cruises, 195 Misc.2d 335, 336, 760 N.Y.S.2d 280 [App.Term., 1st Dept.2003] ).

Plaintiffs failed to raise any issue of fact in opposition. The allegation that the sidewalk was wet, causing plaintiff to slip after her initial trip over a garbage bag, does not render defendant liable, absent evidence that defendant created or had notice of any dangerous condition caused by the wetness (see Bock v. Loumarita Realty Corp., 118 A.D.3d 540, 541, 988 N.Y.S.2d 156 [1st Dept.2014] ; Waiters v. Northern Trust Co. of N.Y., 29 A.D.3d 325, 326, 816 N.Y.S.2d 18 [1st Dept.2006] ; cf. Torres v. New York City Hous. Auth., 118 A.D.3d 540, 988 N.Y.S.2d 162 [1st Dept.2014] [plaintiff slipped on “greasy liquid” leaking from garbage bags] ). Plaintiff's contention that the water must have leaked out one of the bags is unsupported by the record and is purely speculative (see Acunia v. New York City Dept. of Educ., 68 A.D.3d 631, 632, 891 N.Y.S.2d 70 [1st Dept. 2009] ). Plaintiff's contention that she tripped on a “protrusion” from one of the garbage bags likewise finds no support anywhere in the record.


Summaries of

Ruiz v. 221-223 E. 28th St., LLC

Supreme Court, Appellate Division, First Department, New York.
Oct 18, 2016
143 A.D.3d 553 (N.Y. App. Div. 2016)

In Evlin Ruiz v. 221-223 E. 28th St.. LLC, 143 A.D.3d 553 [ A.D. 1st Dept 2016 ], the plaintiffs foot caught one of the garbage bags piled five feet high on the sidewalk resulting in her fall.

Summary of this case from Dugan v. Port Auth. of N.Y. & N.J.
Case details for

Ruiz v. 221-223 E. 28th St., LLC

Case Details

Full title:Evlin RUIZ, et al., Plaintiffs–Appellants, v. 221–223 E. 28TH ST., LLC…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Oct 18, 2016

Citations

143 A.D.3d 553 (N.Y. App. Div. 2016)
39 N.Y.S.3d 431
2016 N.Y. Slip Op. 6790

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