Lazar v Burger Heaven

Lazar v Burger Heaven 2011 NY Slip Op 07492 Decided on October 25, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2011
Tom, J.P., Saxe, Moskowitz, DeGrasse, Abdus-Salaam, JJ.
5817 109336/08

[*1]Sydelle Lazar, et al., Plaintiff-Respondents,

v

Burger Heaven, et al., Defendants-Appellants.




Gannon, Lawrence & Rosenfarb, New York (Lisa L.
Gokhulsingh of counsel), for appellants.
The Feinsilver Law Group, P.C., Brooklyn (Steven I. Roth of
counsel), for respondents.

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 AD3d 692 [2010]; Schulman v Old Navy/Gap, Inc., 45 AD3d 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 one-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 AD3d 210 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2011

CLERK