GOLDBAN v. The City of New York, Defendant. (2003)

Order, Supreme Court, New York County (Faviolo Soto, J.), entered on or about February 1, 2002, which, in an action for personal injuries sustained when plaintiff fell on the sidewalk abutting defendants-respondents' premises, insofar as appealed from as limited by the briefs, granted defendants-respondents' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff tripped and fell when her foot became ensnared in one of the hoops, or “wickets,” of the metal tree guard surrounding a tree in front of defendants' premises.   Plaintiff admits that she saw the tree guard before stepping into it, but that she was momentarily distracted by a taxi cab driving by, causing her to forget about the tree guard.   The action was properly dismissed in view of plaintiff's admission that the tree guard was readily observable (see Pepic v. Joco Realty, 216 A.D.2d 95, 628 N.Y.S.2d 89), and there is no showing of negligence on the part of defendant (see Flynn v. City of New York, 103 A.D.2d 98, 102-103, 478 N.Y.S.2d 666;  O'Neill v. Spitzer, 160 A.D.2d 298, 553 N.Y.S.2d 392).   We have considered plaintiff's other arguments and find them unavailing.