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Marchetti v. Modica

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


September 15, 2009

DENISE MARCHETTI, ETC., APPELLANT,
v.
GIUSEPPE MODICA, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Elliot, J.), dated May 14, 2008, which granted the defendants' motion for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., FRED T. SANTUCCI, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Index No. 1686/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The defendants established, prima facie, their entitlement to judgment as a matter of law by demonstrating that the placement of furniture at the site of the subject accident was open and obvious and not inherently dangerous (see Neiderbach v 7-Eleven, Inc., 56 AD3d 632, 633; Gagliardi v Walmart Stores, Inc., 52 AD3d 777; Espinoza v Hemar Supermarket, Inc., 43 AD3d 855; Bernth v King Kullen Grocery Co., Inc., 36 AD3d 844; Cupo v Karfunkel, 1 AD3d 48; Maravalli v Home Depot U.S.A., 266 AD2d 437). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320).

SKELOS, J.P., SANTUCCI, BALKIN and LEVENTHAL, JJ., concur.

20090915

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