Sanchez v. Toys "R" Us, Inc.

303 A.D.2d 165, 754 N.Y.S.2d 884, 2003 N.Y. App. Div. LEXIS 1944

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2003
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered April 22, 2002, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant fails to establish that, under the circumstances prevailing at its store just two days before Christmas, the rack over which plaintiff tripped, three feet wide by four feet long but only a few inches high, was so readily observable as to warrant summary judgment in its favor. Defendant’s contention that it had no notice of the dangerous condition is improperly raised for the first time on appeal, and we decline to consider it. Concur — Andrias, J.P., Saxe, Rosenberger, Williams and Gonzalez, JJ.