Ambersley v. Athleta LLC

2019 NY Slip Op 569

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 2019
• Docket: 8240 303933/12
• Status: Published

Opinion

Ambersley v Athleta LLC (2019 NY Slip Op 00569)

Ambersley v Athleta LLC

2019 NY Slip Op 00569

Decided on January 29, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 29, 2019
Renwick, J.P., Richter, Mazzarelli, Webber, Kern, JJ.

8240 303933/12

[*1]Jacqueline Ambersley, Plaintiff-Appellant,

v

Athleta LLC, et al., Defendants-Respondents.

Kerner & Kerner, P.C., New York (Kenneth T. Kerner of counsel), for appellant.

McAndrew, Conboy & Prisco, LLP, Melville (Mary C. Azzaretto of counsel), for respondents.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered March 18, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established entitlement to judgment as a matter of law in this action where plaintiff was injured when she walked into a transparent glass door while exiting defendant Athleta's retail store. Defendants submitted evidence showing that the glare of the sun was the cause of plaintiff's accident. Notably, plaintiff testified that as she was leaving the store, the sun was in her face, and that she took two steps and confronted a

door that she did not expect (see Benitez v Olson, 6 AD3d 560, 561-562 [2d Dept 2004], lv denied in part, dismissed in part 3 NY3d 753 [2004]; see also Rios v Gristedes Delivery Serv. Inc., 69 AD3d 499 [1st Dept 2010]).

In opposition, plaintiff failed to raise a triable issue of fact. Although her expert opined that the absence of eye level markings on the exit doors constituted negligence, plaintiff failed to demonstrate how such markings would have prevented her injuries.

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2019

DEPUTY CLERK