Gaggiano v. Sinicki

Appellate Division of the Supreme Court of New York

Gaggiano v. Sinicki

255 A.D.2d 953, 680 N.Y.S.2d 142, 1998 N.Y. App. Div. LEXIS 12204

Appellate Division of the Supreme Court of the State of New York·Decided November 13, 1998·Published·Cited by 2 cases

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Defendant established that she neither created nor had actual or constructive notice of a dangerous condition existing on the floor where plaintiff fell, and plaintiff failed to raise an issue of fact (see, Wright v Fay’s Drugs, 226 AD2d 1132; Milea v Ames Dept. Store, 219 AD2d 798). Additionally, plaintiff concedes that she was aware of the presence of the automobile tire in defendant’s kitchen. Because the tire was readily observable, defendant had no duty to warn of its presence (see, Christmann v Murphy, 226 AD2d 1069, 1070, lv denied 89 NY2d 801; see also, Shandraw v Tops Mkts., 244 AD2d 997; Pepic v Joco Realty, 216 AD2d 95). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present— Green, J. P., Wisner, Pigott, Jr., Balio and Fallon, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Defendant established that she neither created nor had actual or constructive notice of a dangerous condition existing on the floor where plaintiff fell, and plaintiff failed to raise an issue of fact (see, Wright v Fay’s Drugs, 226 AD2d 1132; Milea v Ames Dept. Store, 219 AD2d 798). Additionally, plaintiff concedes that she was aware of the presence of the automobile tire in defendant’s kitchen. Because the tire was readily observable, defendant had no duty to warn of its presence (see, Christmann v Murphy, 226 AD2d 1069, 1070, lv denied 89 NY2d 801; see also, Shandraw v Tops Mkts., 244 AD2d 997; Pepic v Joco Realty, 216 AD2d 95). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present— Green, J. P., Wisner, Pigott, Jr., Balio and Fallon, JJ.

Gaggiano v. Sinicki, 255 A.D.2d 953, 680 N.Y.S.2d 142, 1998 N.Y. App. Div. LEXIS 12204 (N.Y. Ct. App. 1998).

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