| Giambruno v Wilbur F. Breslin Dev. Corp. |
| 2008 NY Slip Op 08704 [56 AD3d 520] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Marie Giambruno et al., Appellants, v Wilbur F. BreslinDevelopment Corp. et al., Respondents. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel),for respondents Wilbur F. Breslin Development Corp., Franklin Plaza, LLC, and BreslinDevelopment Realty Corp. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent Brunjes Blacktop, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limitedby their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.),dated August 16, 2007, as granted that branch of the motion of the defendant Brunjes Blacktop,Inc., which was for summary judgment dismissing the complaint insofar as asserted against it,and granted that branch of the separate motion of the defendants Wilbur F. Breslin DevelopmentCorp., Franklin Plaza, LLC, and Breslin Realty Development Corp. which was for summaryjudgment dismissing the complaint insofar as asserted against them, and (2) a judgment of thesame court entered October 11, 2007, which, upon the order, is in favor of the defendants andagainst them, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,[*2]
Ordered that one bill of costs is awarded to therespondents appearing separately and filing separate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The injured plaintiff tripped and fell over a concrete wheel stop in the parking lot of ashopping center. The injured plaintiff and her husband subsequently commenced this actionagainst several parties, including the owner of the shopping center and the contractor whoinstalled the wheel stops.
Although a landowner has a duty to maintain its premises in a reasonably safe manner(see Basso v Miller, 40 NY2d 233 [1976]), there is no duty to protect or warn against anopen and obvious condition which is not inherently dangerous (see Gagliardi v Walmart Stores, Inc.,52 AD3d 777 [2008]; Sclafaniv Washington Mut., 36 AD3d 682 [2007]; Cupo v Karfunkel, 1 AD3d 48 [2003]). Generally, "[a] wheel stopor concrete parking lot divider which is clearly visible presents no unreasonable risk of harm" (Cardia v Willchester Holdings, LLC,35 AD3d 336, 336 [2006]). In support of the landowner's motion for summaryjudgment, it made a prima facie showing that the wheel stop over which the plaintiff tripped wasnot an inherently dangerous condition, and was readily observable to those employing thereasonable use of their senses (seeAlbano v Pete Milano's Discount Wines & Liqs., 43 AD3d 966, 967 [2007]; Sclafani v Washington Mut., 36 AD3d682 [2007]; Cardia v Willchester Holdings, LLC, 35 AD3d at 337; Gaines v Shell-Mar Foods, Inc., 21AD3d 986, 987 [2005]; Zimkind vCostco Wholesale Corp., 12 AD3d 593, 594 [2004]). In opposition to the motion, theaffidavit of the plaintiffs' expert was insufficient to raise an issue of fact as to whether the wheelstops in the parking lot violated accepted industry standards (see Miller v Kings Park Cent. School Dist., 54 AD3d 314 [2008];Cardia v Willchester Holdings, LLC, 35 AD3d at 337; Davidson v Sachem Cent.School Dist., 300 AD2d 276, 277 [2002]).
The plaintiffs' remaining contentions are without merit. Fisher, J.P., Miller, Dillon and Eng,JJ., concur.