October 8, 2013
Lydia Gonzalez, Plaintiff-Appellant,
Dong Yun Corp., et al., Defendants-Respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (Joshua H. Stern of counsel), for respondents.
Friedman, J.P., Richter, Feinman, Gische, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about January 23, 2013, which, upon the summary judgment motion of defendants Dong Yun Corp., Dong Yun d/b/a Busy Town Market, Busy Town Market and Bo Yon Lee, dismissed the complaint as against all of the defendants, unanimously affirmed, without costs.
Plaintiff saw a supermarket employee unloading items from a cardboard box in the aisle of defendant Busy Town Market before she tripped over the box and hurt her arm. Defendants, relying on plaintiff's deposition testimony, made a prima facie showing of their entitlement to judgment as a matter of law, since the condition described by plaintiff was open and obvious, and was not inherently dangerous (see Lazar v Burger Heaven, 88 A.D.3d 591 [1st Dept 2011]).
In opposition, plaintiff failed to raise a triable issue of fact (see id.). There is no evidence that the box was obscured or left unattended (cf. Westbrook v WR Activities-Cabrera Mkts., 5 A.D.3d 69, 75-76 [1st Dept 2004]).