Summary
parking lot wheel stop open and obvious
Summary of this case from Corwin v. NYC Bike Share, LLCOpinion
2013-11-14
Ruth WACHSPRESS, etc., Plaintiff–Respondent, v. CENTRAL PARKING SYSTEM OF NEW YORK, INC., Defendant–Appellant.
Fixler & LaGattuta, LLP, New York (Jason L. Fixler of counsel), for appellant. Law Offices of Everett N. Nimetz, Kew Gardens (Everett N. Nimetz of counsel), for respondent.
Fixler & LaGattuta, LLP, New York (Jason L. Fixler of counsel), for appellant. Law Offices of Everett N. Nimetz, Kew Gardens (Everett N. Nimetz of counsel), for respondent.
TOM, J.P., MAZZARELLI, FREEDMAN, RICHTER, FEINMAN, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered August 13, 2012, which denied defendant's 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.
Summary judgment in favor of defendant is warranted in this action where the decedent Marcia Wachspress (decedent) was injured when she tripped and fell over a wheel stop in defendant's parking lot. Defendant established, through photographs, that the particular wheel stops over which decedent fell were open and obvious, readily observable by anyone employing the reasonable use of their senses, and not inherently dangerous ( see Philips v. Paco Lafayette LLC, 106 A.D.3d 631, 966 N.Y.S.2d 400 [1st Dept.2013]; Buccino v. City of New York, 84 A.D.3d 670, 923 N.Y.S.2d 322 [1st Dept.2011]; Albano v. Pete Milano's Discount Wines & Liqs., 43 A.D.3d 966, 842 N.Y.S.2d 524 [2d Dept.2007]; Cardia v. Willchester Holdings, LLC, 35 A.D.3d 336, 825 N.Y.S.2d 269 [2d Dept.2006] ).
Contrary to plaintiff's arguments, decedent never testified that she was instructed by the parking lot attendant to take a particular path to the shuttle bus. However, even if she were, that does not render the wheel stops any less open and obvious, or readily observable, nor does it render them dangerous or defective. Similarly, while plaintiff asserts that the wheel stops were not being used in a proper manner, but were used as a barricade, decedent never testified that this use caused her confusion, or contributed to her fall. Nor is there any evidence that such use violated any standard. Plaintiff's argument, that decedent was distracted by the attendant pointing to the shuttle and saying “over there,” in response to her inquiry about the shuttle's location, is belied by the record, as the attendant had already pointed and said “over there” before plaintiff turned and walked several steps. Furthermore, the record is devoid of evidence that defendant failed to maintain the premises in a reasonably safe condition ( cf. Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 773 N.Y.S.2d 38 [1st Dept.2004] ).