In fact, on a regular basis there are customers who take shopping carts up and down the aisles and possibly step away from the cart as they are searching for an item, or attend to a personal need. In Stern v. Costco Wholesale, 882 N.Y.S.2d 266, 63 A.D.3d 1139, 1140 (2009), the court rejected the argument that a flatbed shopping cart left in an aisle was a defect. The plaintiff provided no case law which supports the claim that this is a defect.

; Gallo v. Hempstead Turnpike, LLC, 97 A.D.3d 723, 723 (2d Dep't 2012) (finding a wheel stop, “painted yellow in contrast to the color of the sidewalk to which it was affixed, . . . was readily observable to those employing the reasonable use of their senses and, thus, open and obvious” as a matter of law); Stern v. Costco Wholesale, 63 A.D.3d 1139, 1140 (2d Dep't 2009) (finding flatbed shopping cart, “painted bright orange,” to be “open and obvious”); Neiderbach v. 7-Eleven, Inc., 56 A.D.3d 632, 632 (2d Dep't 2008) (finding a “blue plastic crate . . . about 15 inches high and 12 inches wide” to be an open and obvious condition); Schulman v. Old Navy/The Gap, Inc., 45 A.D.3d 475, 476 (1st Dep't 2007) (finding that a bracket, “even if obscured, was obvious because of the presence of like brackets and racks throughout the store”).

(See Katz Decl., Ex. 8). See Gallo v. Hempstead Turnpike, LLC, 97 A.D.3d 723, 948 N.Y.S.2d 660, 661 (2d Dep't 2012) (finding a wheel stop, "painted yellow in contrast to the color of the sidewalk to which it was affixed, ... was readily observable to those employing the reasonable use of their senses and, thus, open and obvious" as a matter of law); Stern v. Costco Wholesale, 63 A.D.3d 1139, 882 N.Y.S.2d 266, 267 (2d Dep't 2009) (finding flatbed shopping cart, "painted bright orange," to be "open and obvious"); Chaney v. Starbucks Corp., 115 F. Supp. 3d 380, 387 (S.D.N.Y. 2015) ("Virtually any patron in [plaintiff's] position would have readily noticed the [laptop] charger by making reasonable use of [her] senses, as there was a stark color contrast between the white charger and the orange tile floor." (internal quotation marks omitted));

There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous (seeCupo v. Karfunkel , 1 A.D.3d 48, 51, 767 N.Y.S.2d 40 ). Here, the defendants established their entitlement to judgment as a matter of law by demonstrating, prima facie, that the wood on the ground was open and obvious and not inherently dangerous (seeOchoa–Hoenes v. Finkelstein , 172 A.D.3d 1080, 1081, 101 N.Y.S.3d 81 ; Ramirez v. Creative Linen House, Inc. , 170 A.D.3d 913, 93 N.Y.S.3d 866 ; Stern v. Costco Wholesale , 63 A.D.3d 1139, 1140, 882 N.Y.S.2d 266 ). In opposition, the plaintiff failed to raise a triable issue of fact.

While a landowner has a duty to maintain its premises in a reasonably safe condition (seeBasso v. Miller , 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ), there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous (seeGerner v. Shop–Rite Uniondale, Inc. , 148 A.D.3d 1122, 50 N.Y.S.3d 459 ; Cupo v. Karfunkel , 1 A.D.3d 48, 52, 767 N.Y.S.2d 40 ). Here, the defendant established, prima facie, that the wheels on the bin were open and obvious and readily observable by the reasonable use of one's senses, and that the bin was not inherently dangerous (seeBartholomew v. Sears Roebuck & Co. , 159 A.D.3d 786, 69 N.Y.S.3d 813 ; Gerner v. Shop–Rite Uniondale, Inc. , 148 A.D.3d at 1123, 50 N.Y.S.3d 459 ; Stern v. Costco Wholesale , 63 A.D.3d 1139, 1140, 882 N.Y.S.2d 266 ). In opposition, the plaintiff failed to raise a triable issue of fact.

"A landowner has a duty to maintain his or her premises in a reasonably safe manner" ( Benjamin v Trade Fair Supermarket, Inc. , 119 A.D.3d 880, 881, 989 N.Y.S.2d 872 ). "However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous" ( id. at 881, 989 N.Y.S.2d 872 ; seeNeiderbach v. 7–Eleven, Inc. , 56 A.D.3d 632, 633, 868 N.Y.S.2d 91 ; Cupo v. Karfunkel , 1 A.D.3d 48, 52, 767 N.Y.S.2d 40 ). Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including the decedent's deposition testimony, demonstrating that the merchandise rack in the aisle was both open and obvious and that it was not inherently dangerous (see , Calise v. Costco Wholesale Corp. , 124 A.D.3d 815, 816, 998 N.Y.S.2d 895 ; Flaim v. Hex Food, Inc. , 79 A.D.3d 797, 798, 912 N.Y.S.2d 426 ; Stern v. Costco Wholesale , 63 A.D.3d 1139, 1140, 882 N.Y.S.2d 266 ; Neiderbach v. 7–Eleven, Inc. , 56 A.D.3d at 633, 868 N.Y.S.2d 91 ; Kaufmann v. Lerner N.Y., Inc. , 41 A.D.3d 660, 661, 838 N.Y.S.2d 181 ; Chiranky v. Marshalls, Inc. , 273 A.D.2d 266, 266, 708 N.Y.S.2d 699 ). In opposition, the plaintiff failed to raise a triable issue of fact.

The Supreme Court granted the motion, and the plaintiff appeals.The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the presence of the canopy and the supporting poles was open and obvious and not inherently dangerous (see Koepke v. Deer Hills Hardware, Inc., 118 A.D.3d 957, 987 N.Y.S.2d 854 ; Stern v. Costco Wholesale, 63 A.D.3d 1139, 882 N.Y.S.2d 266 ; Neiderbach v. 7–Eleven, Inc., 56 A.D.3d 632, 868 N.Y.S.2d 91 ; Connor v. Taylor Rental Ctr., 278 A.D.2d 270, 718 N.Y.S.2d 605 ; cf. Russo v. Home Goods, Inc., 119 A.D.3d 924, 990 N.Y.S.2d 95 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

The Supreme Court granted the motion, and the plaintiff appeals. The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the presence of the canopy and the supporting poles was open and obvious and not inherently dangerous (see Koepke v Deer Hills Hardware, Inc., 118 AD3d 957; Stern v Costco Wholesale, 63 AD3d 1139; Neiderback v 7-Eleven, Inc., 56 AD3d 632; Connor v Taylor Rental Ctr., 278 AD2d 270; cf. Russo v Home Goods, Inc., 119 AD3d 924). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

The Supreme Court granted the defendants' motion.The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the book cart and the chair were open and obvious and not inherently dangerous (see Koepke v. Deer Hills Hardware, Inc., 118 A.D.3d 957, 987 N.Y.S.2d 854 ; Flaim v. Hex Food, Inc., 79 A.D.3d 797, 912 N.Y.S.2d 426 ; Stern v. Costco Wholesale, 63 A.D.3d 1139, 882 N.Y.S.2d 266 ; Neiderbach v. 7–Eleven, Inc., 56 A.D.3d 632, 868 N.Y.S.2d 91 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous ( see Benson v. IT & LY Hairfashion, NA, Inc., 94 A.D.3d 932, 932, 943 N.Y.S.2d 137;Holdos v. American Consumer Shows, Inc., 91 A.D.3d 823, 823, 937 N.Y.S.2d 303;Neiderbach v. 7–Eleven, Inc., 56 A.D.3d 632, 868 N.Y.S.2d 91;Espinoza v. Hemar Supermarket, Inc., 43 A.D.3d 855, 841 N.Y.S.2d 680). Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject boxes in the supermarket aisle were open and obvious (i.e., readily observable by the reasonable use of one's senses), and not inherently dangerous ( see Flaim v. Hex Food, Inc., 79 A.D.3d 797, 912 N.Y.S.2d 426 ;Stern v. Costco Wholesale, 63 A.D.3d 1139, 882 N.Y.S.2d 266;Neiderbach v. 7–Eleven, Inc., 56 A.D.3d 632, 868 N.Y.S.2d 91;Espinoza v. Hemar Supermarket, Inc., 43 A.D.3d 855, 841 N.Y.S.2d 680). In opposition, the plaintiff failed to raise a triable issue of fact.