| Beck v Bethpage Union Free School Dist. |
| 2011 NY Slip Op 02339 [82 AD3d 1026] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Geraldine Beck et al., Respondents, v Bethpage Union FreeSchool District et al., Appellants, et al., Defendant. |
—[*1] Robert T. Acker, P.C., Massapequa, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants Bethpage UnionFree School District and Bethpage Public Library appeal from an order of the Supreme Court,Nassau County (Marber, J.), entered March 18, 2010, which denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff Geraldine Beck (hereinafter the injured plaintiff) allegedly was injured whenshe tripped and fell over the wheel of a book cart, which had been placed perpendicular to abookshelf, at the end of one of the aisles in the media room of the Bethpage Public Library.
The plaintiffs commenced this action against, among others, the defendants Bethpage UnionFree School District and the Bethpage Public Library (hereinafter together the appellants),alleging that they were negligent in placing the book cart at the end of the aisle in such a way thatthe wheels of the book cart extended into the aisle, thereby creating a dangerous condition. Theappellants asserted that the book cart was open and obvious and did not constitute an inherentlydangerous condition, and moved for summary judgment dismissing the complaint insofar asasserted against them. The Supreme Court denied the appellants' motion. We affirm.
The appellants failed to meet their burden of establishing, as a matter of law, that theymaintained the library in a reasonably safe condition, and that the wheel of the book cart was anopen and obvious condition which was not inherently dangerous (see Gradwohl v Stop & Shop SupermarketCo., LLC, 70 AD3d 634 [2010]; Cupo v Karfunkel, 1 AD3d 48 [2003]). In support of their motion,the appellants submitted, inter alia, the deposition testimony of the injured plaintiff, the library'sdirector, and an independent computer consultant present on the date of the accident, in additionto several photographs depicting the aisle with a book cart placed perpendicular at the end and aclose-up of the book cart's wheels. The injured plaintiff testified that, as she reached the end ofone of the aisles between the bookshelves located in the media room, walking about five feetbehind her husband, her right foot caught a wheel of the book cart. She did not see the book cart,which had been positioned directly against the end of the bookshelf and was extending into theaisle, having entered the aisle from the opposite end, even though she had been at the library forabout 20 minutes [*2]before the accident occurred.
"A condition that is ordinarily apparent to a person making reasonable use of his or hersenses may be rendered a trap for the unwary where the condition is obscured or the plaintiff isdistracted" (Shah v Mercy Med.Ctr., 71 AD3d 1120, 1120 [2010]; see Bloomfield v Jericho Union Free School Dist., 80 AD3d 637,639 [2011]; Villano v StrathmoreTerrace Homeowners Assn., Inc., 76 AD3d 1061, 1062 [2010]). In light of the evidencesubmitted, a triable issue of fact exists as to whether the wheel of the book cart that extended intothe aisle was open and obvious and not inherently dangerous.
Given the testimony of the injured plaintiff, and the other evidence submitted by theappellants showing that the book carts were for the use of employees of the library, known aspages, to return items to the bookshelves, that a page was in the media room at the time of theaccident, and a book cart, when placed perpendicular to the end of a bookshelf, would be mostlyobstructed from the view of a person walking down the aisle in the same direction as the injuredplaintiff, the Supreme Court properly determined that the appellants failed to demonstrate theirentitlement to judgment as a matter of law (see Stoppeli v Yacenda, 78 AD3d 815 [2010]; Shah v Mercy Med. Ctr., 71 AD3d1120 [2010]; see also Gradwohl vStop & Shop Supermarket Co., LLC, 70 AD3d 634 [2010]; Mazzarelli v 54 Plus Realty Corp., 54AD3d 1008 [2008]).
Accordingly, the Supreme Court properly denied the appellants' motion for summaryjudgment dismissing the complaint insofar as asserted against them, regardless of the sufficiencyof the plaintiffs' opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]). Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.