Villanti v. BJ's Wholesale Club, Inc.

106 A.D.3d 556, 965 N.Y.S.2d 472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 2013
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered January 7, 2013, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established its entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when her foot became caught on the leg of the vertical support of a bumper that ran along the bottom of a display case in defendant’s store, causing her to fall to the floor. Defendants submitted photographic and testimonial evidence showing that the alleged defective condition was open and obvious, and not inherently dangerous (see Lazar v Burger Heaven, 88 AD3d 591 [1st Dept 2011]; Matthews v Vlad Restoration Ltd., 74 AD3d 692 [1st Dept 2010]; Schulman v Old Navy /Gap, Inc., 45 AD3d 475 [1st Dept 2007]).

In opposition, plaintiff failed to raise a triable issue of fact. The fact that the support became obscured from plaintiffs view after she walked to a point where she was inches in front of the fruit display did not render the condition one which was hidden or obscured (compare Lehr v Mothers Work, Inc., 73 AD3d 564 [1st Dept 2010]). Concur—Mazzarelli, J.E, Sweeny, Freedman and Gische, JJ.