Wisznic v. Nostrand Shoppers, Inc.

215 A.D.2d 553, 626 N.Y.S.2d 837, 1995 N.Y. App. Div. LEXIS 5164

Opinion

In an action to recover damages for personal injuries, etc., Town & Gown Shop, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated September 29, 1993, as granted that branch of the motion of Nostrand Shoppers, Inc., which was for summary judgment dismissing all cross claims insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs to the defendant-respondent.

The plaintiffs commenced this action to recover for personal injuries allegedly sustained when the plaintiff Bernard Wisznic fell into an opening in a clothing store owned by Nostrand Shoppers, Inc. (hereinafter Nostrand Shoppers). The opening, which led to a storage area in the basement, was normally covered by a trap door. There is no evidence that Nostrand Shoppers negligently or defectively constructed, maintained or repaired the premises or that there was any violation of the Administrative Code of the City of New York. There is no evidence that the trap door constituted a defective condition and there is no claim that an unsafe condition existed when the door was in place (see, Brown v Weinreb, 183 AD2d 562; Kramer v Ash Clothing, 213 AD2d 600). Here, the door became unsafe only after it was left in an open position. Additionally, liability cannot be imposed on Nostrand Shoppers for its failure to provide other safeguards to prevent injury (Brown v Weinreb, supra). Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.