STERN v. COSTCO WHOLESALE

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

Rhoda STERN, appellant, v. COSTCO WHOLESALE, respondent.

Decided: June 30, 2009

STEVEN W. FISHER, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO, and JOHN M. LEVENTHAL, JJ. Verde, Steinberg & Pontell, LLC, New York, N.Y. (Steven Pontell of counsel), for appellant. Thoms M. Bona, P.C., White Plains, N.Y. (James C. Miller and Michael Flake of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered December 17, 2007, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when she tripped and fell over a flatbed shopping cart in one of the aisles of the defendant's store.   The cart was painted bright orange, was approximately four feet long and two to three feet wide, had a six-inch-high bed with a handle at one end, and was available for use by both customers and employees.   On its motion for summary judgment dismissing the complaint, the defendant established that the shopping cart in the aisle was “both open and obvious and ․ not inherently dangerous” (Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40;  see Bernth v. King Kullen Grocery Co., Inc., 36 A.D.3d 844, 830 N.Y.S.2d 222;  Espinoza v. Hemar Supermarket, Inc., 43 A.D.3d 855, 841 N.Y.S.2d 680).   In opposition, the plaintiff failed to raise a triable issue of fact (see Bernth v. King Kullen Grocery Co., Inc., 36 A.D.3d 844, 830 N.Y.S.2d 222).   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

The plaintiff's remaining contentions are without merit.

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