NANNARIELLO v. KOHL DEPARTMENT STORES INC (2018)

DECISION & ORDER

In an action to recover damages for personal injures, the plaintiff appeals from an order of the Supreme Court, Orange County (Lewis J. Lubell, J.), dated February 16, 2016.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Marie Nannariello (hereinafter the decedent) commenced this action against Kohl's Department Stores, Inc., and Kohl's Yonkers (hereinafter together the defendants) to recover damages for personal injuries she allegedly sustained when she fell at the defendants' department store in Yonkers, while attempting to walk past a merchandise rack situated in one of the aisles.  In an order dated February 16, 2016, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint.  The decedent appealed from the order, and died while this appeal was pending.  Joseph Nannariello, as the administrator of the decedent's estate (hereinafter the plaintiff), was substituted as the plaintiff.

“A landowner has a duty to maintain his or her premises in a reasonably safe manner” (Benjamin v Trade Fair Supermarket, Inc., 119 A.D.3d 880, 881, 989 N.Y.S.2d 872).  “However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” (id. at 881, 989 N.Y.S.2d 872;  see Neiderbach v. 7–Eleven, Inc., 56 A.D.3d 632, 633, 868 N.Y.S.2d 91;  Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40).  Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including the decedent's deposition testimony, demonstrating that the merchandise rack in the aisle was both open and obvious and that it was not inherently dangerous (see, Calise v. Costco Wholesale Corp., 124 A.D.3d 815, 816, 998 N.Y.S.2d 895;  Flaim v. Hex Food, Inc., 79 A.D.3d 797, 798, 912 N.Y.S.2d 426;  Stern v. Costco Wholesale, 63 A.D.3d 1139, 1140, 882 N.Y.S.2d 266;  Neiderbach v. 7–Eleven, Inc., 56 A.D.3d at 633, 868 N.Y.S.2d 91;  Kaufmann v. Lerner N.Y., Inc., 41 A.D.3d 660, 661, 838 N.Y.S.2d 181;  Chiranky v. Marshalls, Inc., 273 A.D.2d 266, 266, 708 N.Y.S.2d 699).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint.

BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.