| Flaim v Hex Food, Inc. |
| 2010 NY Slip Op 09214 [79 AD3d 797] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Sylvia Flaim, Appellant, v Hex Food, Inc., Doing Business asPrice Choice, et al., Respondents, et al., Defendants. |
—[*1] MacKay, Wrynn & Brady, LLP, Douglaston, N.Y. (Christine Brennan of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief,from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated September 24,2009, as granted that branch of the motion of the defendants Hex Food Inc., doing business as PriceChoice, and Hex Food, Inc., doing business as Price Rite Food Market, which was for summaryjudgment dismissing the complaint insofar as asserted against them, and denied her cross motion forsummary judgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly tripped and fell over a so-called "U-boat" dolly which had been leftunattended in the middle of a supermarket aisle. The supermarket was owned by the defendants HexFood, Inc., doing business as Price Choice, and Hex Food Inc., doing business as Price Rite FoodMarket (hereinafter together the defendants). At her deposition, the plaintiff testified that, at the time ofher accident, five or six closed boxes were stacked on top of the U-boat dolly.
The Supreme Court properly granted that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against them, and properly denied theplaintiff's cross motion for summary judgment on the issue of liability. The defendants established, primafacie, that the U-boat dolly in the aisle was both open and obvious and not inherently dangerous (see Stern v Costco Wholesale, 63 AD3d1139, 1140 [2009]; Neiderbach v7-Eleven, Inc., 56 AD3d 632, 633 [2008]; Espinoza v Hemar Supermarket, Inc., 43 AD3d 855 [2007]; Bernth v King Kullen Grocery Co., Inc., 36AD3d 844 [2007]; cf. Gradwohl v Stop& Shop Supermarket Co., LLC, 70 AD3d 634, 636-637 [2010]). In opposition, the plaintifffailed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). For the same reason, the plaintiff failed to establish her own entitlement to judgment as amatter of law. Mastro, J.P., Covello, Angiolillo and Lott, JJ., concur. [Prior Case History: 2009NY Slip Op 32400(U).]