| Stern v Costco Wholesale |
| 2009 NY Slip Op 05534 [63 AD3d 1139] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Rhoda Stern, Appellant, v Costco Wholesale,Respondent. |
—[*1] Thoms M. Bona, P.C., White Plains, N.Y. (James C. Miller and Michael Flake of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Nastasi, J.), entered December 17, 2007, which grantedthe defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when she tripped and fell over a flatbed shopping cart inone of the aisles of the defendant's store. The cart was painted bright orange, was approximatelyfour feet long and two to three feet wide, had a six-inch-high bed with a handle at one end, andwas available for use by both customers and employees. On its motion for summary judgmentdismissing the complaint, the defendant established that the shopping cart in the aisle was "bothopen and obvious and . . . not inherently dangerous" (Cupo vKarfunkel, 1 AD3d 48, 52 [2003]; see Bernth v King Kullen Grocery Co., Inc., 36AD3d 844 [2007]; Espinoza v Hemar Supermarket, Inc., 43 AD3d 855 [2007]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Bernth v King KullenGrocery Co., Inc., 36 AD3d 844 [2007]). Accordingly, the Supreme Court properly grantedthe defendant's motion for summary judgment dismissing the complaint.
The plaintiff's remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo andLeventhal, JJ., concur.