Gonzalez v. Dong Yun Corp.

110 A.D.3d 484, 973 N.Y.S.2d 66

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 8, 2013
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr, J.), entered on or about January 23, 2013, which, upon the summary judgment motion of defendants Dong Yun Corp., Dong Yun doing business as Busy Town Market, Busy Town Market and Bo Yon Lee, dismissed the complaint as against all of the defendants, unanimously affirmed, without costs.

Plaintiff saw a supermarket employee unloading items from a cardboard box in the aisle of defendant Busy Town Market before she tripped over the box and hurt her arm. Defendants, relying on plaintiffs deposition testimony, made a prima facie showing of their entitlement to judgment as a matter of law, since the condition described by plaintiff was open and obvious, and was not inherently dangerous (see Lazar v Burger Heaven, 88 AD3d 591 [1st Dept 2011]).

In opposition, plaintiff failed to raise a triable issue of fact (see id.). There is no evidence that the box was obscured or left unattended (cf. Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 75-76 [1st Dept 2004]). Concur — Friedman, J.P., Richter, Feinman and Gische, JJ.