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Stern v. River Manor Care Center, Inc.

Supreme Court of New York, Second Department

May 22, 2013

Rochelle Stern, appellant,
v.
River Manor Care Center, Inc., et al., respondents. Index No. 33528/08

Robert R. Arena, Astoria, N.Y., for appellant.

Edward Garfinkel (McGaw, Alventosa & Zajac, Jericho, N.Y. [Dawn C. DeSimone], of counsel), for respondents.

WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SANDRA L. SGROI ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated July 13, 2012, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

While a landowner has a duty to maintain its premises in a reasonably safe manner for its patrons (see Basso v Miller, 40 N.Y.2d 233, 241), there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous (see Gallub v Popei's Clam Bar, Ltd., of Deer Park, 98 A.D.3d 559, 560; Cupo v Karfunkel, 1 A.D.3d 48, 53). Generally "[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm" (Cardia v Willchester Holdings, LLC, 35 A.D.3d 336, 336; see Gallub v Popei's Clam Bar, Ltd., of Deer Park, 98 A.D.3d at 560; Pipitone v 7-Eleven, Inc., 67 A.D.3d 879, 880; Giambruno v Wilbur F. Breslin Dev. Corp., 56 A.D.3d 520, 521; Plessias v Scalia Home for Funerals, 271 A.D.2d 423, 423).

Here, in support of their motion for summary judgment dismissing the complaint, the defendants submitted, among other things, the plaintiff's deposition transcript and photographs of the wheel stop over which the plaintiff tripped. The defendants' submissions were sufficient to establish, prima facie, that the wheel stop was open and obvious, and was not inherently dangerous (see Gallub v Popei's Clam Bar, Ltd., of Deer Park, 98 A.D.3d at 560; Pipitone v 7-Eleven, Inc., 67 A.D.3d at 880; Cardia v Willchester Holdings, LLC, 35 A.D.3d at 336; Giambruno v Wilbur F. Breslin Dev. Corp., 56 A.D.3d at 521; Zimkind v Costco Wholesale Corp., 12 A.D.3d 593, 594; Bryant v Superior Computer Outlet, 5 A.D.3d 343, 344). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

MASTRO, J.P., LEVENTHAL, SGROI and MILLER, JJ., concur.


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