Sewer v. Fat Albert's Warehouse, Inc.

235 A.D.2d 414, 652 N.Y.S.2d 102, 1997 N.Y. App. Div. LEXIS 178

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated December 15, 1995, 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 was injured when, while making her way through a narrow pathway formed by crowded racks of winter jackets at the defendant’s store, she stepped on a wire shopping basket which was beneath the racks. The plaintiff, however, offered no evidence that the defendant placed the wire basket there or that it had actual or constructive notice of its presence under the racks (see, Gordon v American Museum of Natural History, 67 NY2d 836; Gordon v Waldbaum, Inc., 231 AD2d 673; cf., Quinn v K-Mart Corp., 224 AD2d 998). Nor does the defendant have a duty to warn against a condition which is readily observable, such as the narrowness of a pathway created by clothing racks (see, e.g, Binensztok v Marshall Stores, 228 AD2d 534). Because the plaintiff has failed to raise a triable issue of fact, the defendant is entitled to summary judgment.

The plaintiff’s remaining contentions are without merit. Bracken, J. P., Copertino, Thompson and Pizzuto, JJ., concur.