HEIDEN v. CITY OF NEW YORK (2008)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated February 27, 2007, as denied that branch of their motion which was to dismiss the complaint for failure to comply with CPLR 304 or, alternatively, for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint is granted.

The defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the table wheel upon which the plaintiff tripped and fell was open and obvious, and not inherently dangerous (see Mastellone v. City of New York, 29 A.D.3d 540, 813 N.Y.S.2d 669;  Swan v. Eastman Kodak Co., 16 A.D.3d 1098, 1099, 790 N.Y.S.2d 897;  Hecht v. 281 Scarsdale Corp., 3 A.D.3d 551, 552, 770 N.Y.S.2d 643;  Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40;  Sorce v. Great Oak Marina, 282 A.D.2d 598, 599, 723 N.Y.S.2d 505).   In response, the plaintiff failed to raise a triable issue of fact sufficient to defeat the motion for summary judgment (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Thus, the Supreme Court erred in denying that branch of the defendants' motion which was for summary judgment.

In light of our determination, we need not reach the parties' remaining contentions.