Borra v. Walden Books, Inc.

298 A.D.2d 542, 748 N.Y.S.2d 670, 2002 N.Y. App. Div. LEXIS 10235

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), entered November 28, 2001, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff tripped and fell over a footstool in an aisle in the defendant’s book store. The plaintiff testified at her deposition that she did not observe the footstool before the accident.

The record establishes that the footstool over which the plaintiff tripped and fell was readily observable by the reasonable use of one’s senses; therefore, the defendant established its entitlement to summary judgment dismissing the complaint (see Fabian v Sunbury Footaction, 292 AD2d 340; Chiranky v Marshalls, Inc., 273 AD2d 266; Maravalli v Home Depot U.S.A., 266 AD2d 437; Lamia v Federated Dept. Stores, 263 AD2d 498). In opposition, the plaintiff failed to raise a triable issue of fact. Feuerstein, J.P., S. Miller, Friedmann and Cozier, JJ., concur.