| Matthews v Vlad Restoration Ltd. |
| 2010 NY Slip Op 05696 [74 AD3d 692] |
| June 29, 2010 |
| Appellate Division, First Department |
| Laura Matthews, Appellant, v Vlad Restoration Ltd. et al.,Respondents. |
—[*1] Rivkin Radler LLP, Uniondale (Harris J. Zakarin of counsel), for respondents.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered May 21, 2009,which granted defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Plaintiff, on her cell phone while hurrying across a scaffold to catch a bus, tripped on a lowerhorizontal brace and suffered injury. Defendants met their prima facie burden by showing thescaffold was open and obvious as a matter of law, and not inherently dangerous (Burke v Canyon Rd. Rest., 60 AD3d558 [2009]; see also Connor v Taylor Rental Ctr., 278 AD2d 270 [2000];Plessias v Scalia Home for Funerals, 271 AD2d 423 [2000]). Photographs taken byplaintiff after the accident depict two bright blue horizontal bars, clearly presenting a barrier topassersby. In opposition, plaintiff failed to raise an issue of fact. Her expert's affidavit failed toshow inherent danger; the unsubstantiated claim that the scaffold did not comply with industrycustom and practice does not create an issue of fact (see Jones v City of New York, 32 AD3d 706 [2006]).Concur—Andrias, J.P., Saxe, Friedman, Nardelli and Acosta, JJ.