GAGLIARDI v. WALMART STORES INC

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

Dolores GAGLIARDI, appellant, v. WALMART STORES, INC., respondent.

Decided: June 24, 2008

ROBERT A. LIFSON, J.P., HOWARD MILLER, MARK C. DILLON, and RANDALL T. ENG, JJ. Grace & Grace, Yorktown Heights, N.Y. (Michael J. Grace of counsel), for appellant. Brody, O'Connor & O'Connor, Northport, N.Y. (Thomas M. O'Connor and Patricia A. O'Connor of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered April 24, 2007, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 A landowner has a duty to maintain its premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).   However, a landowner has no duty to protect or warn against an open and obvious condition, which, as a matter of law, is not inherently dangerous (see Sclafani v. Washington Mut., 36 A.D.3d 682, 829 N.Y.S.2d 553;  Tenenbaum v. Best 21 Ltd., 15 A.D.3d 646, 790 N.Y.S.2d 236;  Jang Hee Lee v. Sung Whun Oh, 3 A.D.3d 473, 771 N.Y.S.2d 134;  Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40).

 Here, the defendant submitted evidence sufficient to establish its entitlement to judgment as a matter of law by demonstrating that the box containing an unassembled chest of dresser drawers, which was placed in the aisle of its store and allegedly caused the plaintiff's injuries, was open and obvious, not inherently dangerous, and not a proximate cause of the accident (see Espinoza v. Hemar Supermarket, Inc., 43 A.D.3d 855, 841 N.Y.S.2d 680;  Kaufmann v. Lerner N.Y., Inc., 41 A.D.3d 660, 838 N.Y.S.2d 181;  Bernth v. King Kullen Grocery Co., Inc., 36 A.D.3d 844, 830 N.Y.S.2d 222;  Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.

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