Crafa v Marshalls of MA, Inc.

2008 NY Slip Op 10578 [57 AD3d 937]

December 30, 2008

Appellate Division, Second Department

As corrected through Wednesday, February 11, 2009

Catherine Crafa et al., Respondents, v Marshalls of MA,Inc., et al., Appellants.

—[*1]McAndrew, Conboy & Prisco, LLP, Woodbury, N.Y. (Mary C. Azzaretto of counsel),for appellants.

Seidner, Rosenfeld & Guttentag, LLP, Babylon, N.Y. (Jeffrey Guttentag of counsel), forrespondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Suffolk County (R. Doyle, J.), entered January 30, 2008, whichdenied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On their motion for summary judgment dismissing the complaint, the defendants failed tooffer evidence sufficient to show that the condition complained of by the plaintiffs was both openand obvious and, as a matter of law, not inherently dangerous (see Cupo v Karfunkel, 1AD3d 48, 52 [2003]). Nor did the defendants meet their prima facie burden of demonstratingtheir lack of constructive notice regarding the allegedly hazardous condition that caused theinjured plaintiff to fall (see Roussos v Ciccotto, 15 AD3d 641, 642-643 [2005]).Accordingly, the Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint. In light of the foregoing, it is not necessary to consider the sufficiencyof the plaintiffs' opposition papers. Fisher, J.P., Florio, Carni and Chambers, JJ., concur.