| Albano v Pete Milano's Discount Wines & Liquors |
| 2007 NY Slip Op 06813 [43 AD3d 966] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Lucy Anne Albano, Appellant, v Pete Milano's DiscountWines & Liquors et al., Respondents. |
—[*1] Michael F. X. Manning, New York, N.Y. (Eric P. Tosca of counsel; Ivonne Golborne on thebrief), for respondents Pete Milano's Discount Wines & Liquors and P & M Forest Avenue RealEstate Company, LLC. Zetlin & De Chiara, LLP, New York, N.Y. (Bill P. Chimos and Raymond T. Mellon ofcounsel), for respondent Mark Lipton Associates. Bivona & Cohen, P.C., New York, N.Y. (Rachel Zetooney of counsel), for respondent GreatEastern Maintenance Services, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), datedSeptember 27, 2005, as denied her motion for summary judgment on the issue of liability,granted those branches of the separate motions of the defendants Mark Lipton Associates andGreat Eastern Maintenance Services, Inc., which were for summary judgment dismissing thecomplaint insofar as asserted against them, in effect, searched the record, and awarded summaryjudgment dismissing the complaint against the remaining defendants.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to therespondents appearing separately and filing separate briefs.[*2]
The plaintiff allegedly was injured when she tripped on aconcrete wheel stop in a parking lot where she validly parked in a handicap parking space. Insupport of their respective motions for summary judgment, the defendants Mark LiptonAssociates (hereinafter Mark Lipton) and Great Eastern Maintenance Services, Inc. (hereinafterGreat Eastern), presented evidence establishing that the concrete wheel stop was not aninherently dangerous condition and was readily observable by the reasonable use of one's senses(see Cardia v Willchester Holdings,LLC, 35 AD3d 336 [2006]; Zimkind v Costco Wholesale Corp., 12 AD3d 593 [2004];Bryant v Superior Computer Outlet, 5 AD3d 343 [2004]). In opposition to those motionsand in support of her cross motion for summary judgment on the issue of liability, the plaintiffsubmitted expert evidence that the design of the handicap parking space violated variousprovisions of the New York City Building Code. However, the plaintiff's evidentiary submissionsfailed to raise a triable issue of fact as to whether these alleged defects were a proximate cause ofher accident (see Kipybida v GoodSamaritan Hosp., 35 AD3d 544, 545 [2006]; Warrick v Capabilities, Inc., 299AD2d 622, 623 [2002]; Raimon v City of Ithaca, 157 AD2d 999 [1990]). Accordingly,the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue ofliability, properly granted those branches of the separate motions of Mark Lipton and GreatEastern which were for summary judgment dismissing the complaint insofar as asserted againstthem, properly, in effect, searched the record, and properly awarded summary judgmentdismissing the complaint against the remaining defendants. Schmidt, J.P., Goldstein, Covello andDickerson, JJ., concur.