LiPuma v J.P. Morgan Chase N.A.

LiPuma v J.P. Morgan Chase N.A. 2014 NY Slip Op 04905 Decided on July 2, 2014 Appellate Division, Second 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 July 2, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.
2013-04093
(Index No. 13778/09)

[*1]Walter LiPuma, et al., respondents,

v

J.P. Morgan Chase N.A., appellant.

Russo & Toner, LLP, New York, N.Y. (Marcin Kurzatkowski of counsel), for appellant.

Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP, Saint James, N.Y. (James J. Herz of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated September 24, 2012, which denied its motion for summary judgment dismissing the amended complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the amended complaint is granted.

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries sustained by the plaintiff Walter LiPuma when he allegedly fell over a wheel stop in the defendant's parking lot at dusk on November 14, 2008. The plaintiffs alleged that the defendant failed to provide adequate lighting in the area and improperly situated the wheel stop in an area where pedestrians might walk. The Supreme Court denied the defendant's motion for summary judgment dismissing the amended complaint. We reverse.

The defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, affidavits and photographic evidence establishing that the wheel stops in the subject area possessed reflectorized coatings which made them visible in the ambient light. Accordingly, the defendant demonstrated that the wheel stop over which Walter LiPuma allegedly fell was open and obvious and not inherently dangerous (see e.g. Bellini v Gypsy Magic Enters., Inc., 112 AD3d 867, 868; Stern v River Manor Care Ctr., Inc., 106 AD3d 990, 991; Gallub v Popei's Clam Bar, Ltd., of Deer Park, 98 AD3d 559, 560; Pipitone v 7-Eleven, Inc., 67 AD3d 879, 880). The plaintiffs failed to raise a triable issue of fact in opposition to the defendant's prima facie showing. Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the amended complaint.

MASTRO, J.P., DICKERSON, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court