Bogaty v. Bluestone Realty NY, Inc.

• Decision Date: 14 December 2016
• Citation: 145 A.D.3d 752,2016 N.Y. Slip Op. 08343,43 N.Y.S.3d 459
• Parties: Rhonda BOGATY, appellant, v. BLUESTONE REALTY NY, INC., respondent.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 752

43 N.Y.S.3d 459

2016 N.Y. Slip Op. 08343

Rhonda BOGATY, appellant,

v.BLUESTONE REALTY NY, INC., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 14, 2016.

Finz & Finz, P.C., Mineola, NY (Ameer Benno of counsel), for appellant.

Barry, McTiernan & Moore LLC, New York, NY (Laurel A. Wedinger of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Livote, J.), entered September 15, 2015, as, upon reargument, adhered to a prior determination in an order of the same court entered April 1, 2015, granting the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On April 4, 2012, at approximately 10:30 a.m., the plaintiff allegedly tripped and fell over a wheel stop in a parking space at a small supermarket located in Great Neck. At the time of the accident, the premises were owned by the defendant. The plaintiff commenced the instant action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff allegedly tripped over a wheel stop that was open and obvious and not inherently dangerous as a matter of law. The Supreme Court granted the defendant's motion in an order entered April 1, 2015. Thereafter, the plaintiff moved for leave to reargue her opposition to the defendant's motion. In an order entered September 15, 2015, the Supreme Court granted reargument and, upon reargument, adhered to its prior determination. We affirm insofar as appealed from.

Although a landowner has a duty to maintain its premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 241–242, 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 (see Lacerra v. CVS Pharm., 143 A.D.3d 674, 674, 38 N.Y.S.3d 267 ; Miller v. Costco Wholesale Corp., 125 A.D.3d 828, 4 N.Y.S.3d 281 ; Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 868, 978 N.Y.S.2d 73 ). Generally, "[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm" (Cardia v. Willchester Holdings, LLC, 35 A.D.3d 336, 336, 825 N.Y.S.2d 269 ; see Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d at 868, 978 N.Y.S.2d 73 ; Gallub v. Popei's Clam Bar, Ltd., of Deer Park, 98 A.D.3d 559, 560, 949 N.Y.S.2d 467 ; Gallo v. Hempstead Turnpike, LLC, 97 A.D.3d 723, 723, 948 N.Y.S.2d 660 ).

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony and photographic evidence demonstrating that the plaintiff tripped when her foot came into contact with a wheel stop that was...