WEINBERG v. JAF COLOR LABS INC (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Sherwood, J.), entered December 17, 2007, which granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff allegedly sustained personal injuries when he fell onto a glass merchandise display case located inside of the defendant's store.   The infant plaintiff and his parents commenced this action, alleging, inter alia, that the defendant was negligent in maintaining its property.   Specifically, they alleged that the defendant failed to install shatterproof glass in the merchandise display case.   The Supreme Court granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.   We affirm.

 Owners and business proprietors have a duty to maintain their property “ ‘in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ ” (Peralta v. Henriquez, 100 N.Y.2d 139, 143, 760 N.Y.S.2d 741, 790 N.E.2d 1170, quoting Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868;  see Dabnis v. West Islip Pub. Lib., 45 A.D.3d 802, 803, 846 N.Y.S.2d 331).   Here, the Supreme Court properly found that the defendant established its prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The defendant submitted evidence that the subject glass merchandise display case was in good condition.   Moreover, there is no contention that the defendant violated any applicable statute or code.   In opposition, the plaintiffs failed to raise a triable issue of fact.

Contrary to the plaintiffs' contention, “they failed to offer an evidentiary basis demonstrating that further discovery may lead to relevant evidence, as opposed to mere hope and speculation as to what additional discovery would uncover” (Leeds, Morelli & Brown, P.C. v. Hernandez, 55 A.D.3d 794, 866 N.Y.S.2d 311;  see Torres v. American Bldg. Maintenance Co. of N.Y., 51 A.D.3d 905, 906, 858 N.Y.S.2d 360).