GAGGIANO v. SINICKI (1998)

Supreme Court, Appellate Division, Fourth Department, New York.

Joan GAGGIANO, Appellant, v. Florence SINICKI, Respondent.

Decided: November 13, 1998

Present: GREEN, J.P., WISNER, PIGOTT, BALIO and FALLON, JJ.

Harris, Beach & Wilcox by Teresa Weinreber, Jonathan Johnsen, Hamburg, for Appellant-Gaggiano. Brown & Kelly, L.L.P. by Daniel Marren, Buffalo, for Respondent.

Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Defendant established that she neither created nor had actual or constructive notice of a dangerous condition existing on the floor where plaintiff fell, and plaintiff failed to raise an issue of fact (see, Wright v. Fay's Drugs, 226 A.D.2d 1132, 642 N.Y.S.2d 836; Milea v. Ames Dept. Store, 219 A.D.2d 798, 632 N.Y.S.2d 363). Additionally, plaintiff concedes that she was aware of the presence of the automobile tire in defendant's kitchen. Because the tire was readily observable, defendant had no duty to warn of its presence (see, Christmann v. Murphy, 226 A.D.2d 1069, 1070, 642 N.Y.S.2d 123, lv. denied 89 N.Y.2d 801, 653 N.Y.S.2d 278, 675 N.E.2d 1231; see also, Shandraw v. Tops Mkts., 244 A.D.2d 997, 665 N.Y.S.2d 486; Pepic v. Joco Realty, 216 A.D.2d 95, 628 N.Y.S.2d 89).

Order unanimously affirmed without costs.

MEMORANDUM:

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