| Neiderbach v 7-Eleven, Inc. |
| 2008 NY Slip Op 09050 [56 AD3d 632] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Rochelle Neiderbach, Respondent, v 7-Eleven, Inc., et al.,Appellants. |
—[*1] Raskin & Kremins, LLP, New York, N.Y. (Alexander J. Wulwick of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Johnson, J.), dated December 10, 2007, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly tripped and fell over a blue plastic crate on the floor of an aisle in thedefendants' store. The crate was about 15 inches high and 12 inches wide, and the aisle wasuncluttered. The defendants moved for summary judgment dismissing the complaint contending,inter alia, that the crate which allegedly caused the plaintiff to fall was open and obvious and notinherently dangerous. The Supreme Court denied the motion. We reverse.
A landowner has a duty to maintain his or her premises in a reasonably safe manner (seeBasso v Miller, 40 NY2d 233, 241 [1976]). However, he or she has no duty to protect orwarn against an open and obvious condition, which as a matter of law is not inherently dangerous(see Cupo v Karfunkel, 1 AD3d 48 [2003]). The defendants established, prima facie,their entitlement to judgment as a matter of law by showing that the crate which allegedly causedthe plaintiff to fall was readily observable by the reasonable use of [*2]one's senses and was not inherently dangerous (see Vergara v A& S Twins Constr. Corp., 41 AD3d 588 [2007]; Bernth v King Kullen Grocery Co., Inc.,36 AD3d 844 [2007]; Schoen v King Kullen Grocery Co., 296 AD2d 486 [2002]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp.,68 NY2d 320 [1986]). Accordingly, the Supreme Court should have granted the defendants'motion for summary judgment dismissing the complaint. Rivera, J.P., Lifson, Eng andChambers, JJ., concur.