CHAIR IS "OPEN AND OBVIOUS" DANGER; ACCIDENT VICTIM'S CASE DISMISSED ON DEFENSE SUMMARY JUDGMENT MOTION

Court: Supreme Court, Appellate Division, First Department, New York

Case: Lazar v. Burger Heaven

Date: Oct. 25, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury attorney)

Comment: Walking accident victim tripped on a chair that was part of a sidewalk café. She sues for negligence. Summary judgment granted to the defendant by this appeals court because the condition was "open and obvious"-- our old friend--and also "not inherently dangerous."

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Order, Supreme Court, New York County (Louis B. York, J.), entered October 18, 2010, which, in this action for personal injuries allegedly sustained when plaintiff Sydelle Lazar, while walking on the sidewalk, tripped over an occupied chair that was part of defendants' sidewalk café and fell to the ground, denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendants established their prima facie entitlement to judgment as a matter of law. Defendants submitted evidence showing that the chair was an open and obvious condition and not inherently dangerous (see Matthews v. Vlad Restoration Ltd., 74 A.D.3d 692 [2010]; Schulman v. Old Navy/Gap, Inc., 45 A.D.3d 475 [2007]). Defendants also demonstrated that the placement of the cafe's chairs on the sidewalk was in compliance with 34 RCNY 2-10(c), which provides that " [e]ight feet or oneā€‘half the sidewalk width, whichever is greater, shall be maintained by the permittee for unobstructed pedestrian passage."

In opposition, plaintiffs failed to raise a triable issue of fact. Indeed, plaintiff admitted to having previously observed the alleged condition and does not maintain that the condition was obscured (compare Centeno v. Regine's Originals, 5 A.D.3d 210 [2004]).

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