Carrera v Roach

Carrera v Roach 2007 NY Slip Op 07938 [44 AD3d 532] October 23, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Fanny Carrera et al., Respondents,
v
Stephen Roach et al., Appellants.

—[*1] Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellants.

Alexander J. Wulwick, New York, for respondents.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered March 28, 2007, which, in an action for personal injuries sustained by plaintiff housekeeper when the stool on which she was standing collapsed, denied defendant homeowners' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

No issues of fact exist as to the purely decorative nature of the stool on which plaintiff stood to reach the upper shelf of defendants' bookcase and the open and obvious danger of using it as a step stool. Nor is there an issue of fact as to defendants' lack of notice of plaintiff's use of the three-legged stool as a step stool. Accordingly, defendants were under no duty to either make the stool safe for use as a step stool (see Brown v New York Med. Coll. for Comprehensive Health Practice, 162 AD2d 139 [1990]) or warn plaintiff of the danger of using it as a step stool (see Tagle v Jakob, 97 NY2d 165, 169 [2001]). We have considered plaintiff's other arguments, including her reliance on the doctrine of res ipsa loquitur, and find them unavailing. Concur—Saxe, J.P., Marlow, Williams, Sweeny and Malone, JJ. [See 2007 NY Slip Op 30380(U).]