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Schwartz v. Kings Third Ave. Pharmacy, Inc.

Supreme Court, Appellate Division, First Department, New York.
Apr 8, 2014
116 A.D.3d 474 (N.Y. App. Div. 2014)

Opinion

2014-04-8

Phyllis SCHWARTZ, Plaintiff–Appellant, v. KINGS THIRD AVE. PHARMACY, INC., etc., Defendant–Respondent.

Rheingold, Valet, Rheingold, McCartney & Giuffra LLP, New York (Jeremy A. Hellman of counsel), for appellant. Harris, King & Fodera, New York (Laura Cohen of counsel), for respondent.



Rheingold, Valet, Rheingold, McCartney & Giuffra LLP, New York (Jeremy A. Hellman of counsel), for appellant. Harris, King & Fodera, New York (Laura Cohen of counsel), for respondent.
MAZZARELLI, J.P., ANDRIAS, DeGRASSE, FEINMAN, KAPNICK, JJ.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 8, 2013, 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 was injured when she allegedly tripped and fell over a display rack in the aisle of defendant's store. Defendant demonstrated that the display rack was an open and obvious condition and was not inherently dangerous ( see e.g. Schulman v. Old Navy/Gap, Inc., 45 A.D.3d 475, 845 N.Y.S.2d 341 [1st Dept.2007] ). Defendant referred to plaintiff's testimony that she saw the display rack before the accident and submitted photographs of the rack showing its open and obvious nature, and that it was placed in a reasonably safe location. The photographs also show that the base did not protrude into the aisle, was essentially flush with the shelves above, and that the rack was placed flat against the shelving in the aisle, which was clear and uncluttered ( see Gonzalez v. Dong Yun Corp., 110 A.D.3d 484, 973 N.Y.S.2d 66 [1st Dept.2013]; Speirs v. Dick's Clothing & Sporting Goods, 268 A.D.2d 581, 702 N.Y.S.2d 842 [2d Dept.2000] ).

In opposition, plaintiff failed to raise a triable issue of fact. Contrary to her argument that the display rack was placed at the end of the aisle such that she did not have sufficient time to perceive it upon turning into the aisle, the evidence, including her testimony, shows that the rack was located at least several feet into the aisle ( compare Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 773 N.Y.S.2d 38 [1st Dept.2004]; Robinson v. 206–16 Hollis Ave. Food Corp., 82 A.D.3d 735, 918 N.Y.S.2d 161 [2d Dept.2011] ). Moreover, plaintiff stated that she noticed the rack before the accident, and her expert's affidavit fails to raise a triable issue, and was conclusory and speculative ( see e.g. Vazquez v. JRG Realty Corp., 81 A.D.3d 555, 917 N.Y.S.2d 562 [1st Dept.2011] ).

We have considered plaintiff's remaining arguments and find them unavailing.


Summaries of

Schwartz v. Kings Third Ave. Pharmacy, Inc.

Supreme Court, Appellate Division, First Department, New York.
Apr 8, 2014
116 A.D.3d 474 (N.Y. App. Div. 2014)
Case details for

Schwartz v. Kings Third Ave. Pharmacy, Inc.

Case Details

Full title:Phyllis SCHWARTZ, Plaintiff–Appellant, v. KINGS THIRD AVE. PHARMACY, INC.…

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

Date published: Apr 8, 2014

Citations

116 A.D.3d 474 (N.Y. App. Div. 2014)
116 A.D.3d 474
2014 N.Y. Slip Op. 2388

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