Barchi v. Rudin East 55th Street LLC , 144 A.D.3d 444 ( 2016 )

Barchi v Rudin E. 55th St. LLC (2016 NY Slip Op 07266)

Barchi v Rudin E. 55th St. LLC

2016 NY Slip Op 07266

Decided on November 3, 2016

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 November 3, 2016
Friedman, J.P., Renwick, Feinman, Kapnick, JJ.

2130 154886/13

[*1]Simon Barchi, Plaintiff-Appellant,

v

Rudin East 55th Street LLC, et al., Defendants-Respondents.

Robert Giusti, Esq. & Associates, PLLC, Bayside (Robert Giusti of counsel), for appellant.

Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about January 21, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants satisfied their prima facie burden by submitting evidence, including plaintiff's own testimony, demonstrating that the pile of Christmas trees over which plaintiff tripped was an open, obvious, and not inherently dangerous condition (see Lazar v Burger Heaven, 88 AD3d 591 [1st Dept 2011]; Baynes v City of New York, 81 AD3d 423 [1st Dept 2011]).

In opposition, plaintiff failed to raise a triable issue of fact. He admitted observing the trees before the accident, and while he claims not to have seen the specific tree trunk over which he tripped, through the reasonable use of his senses, he should have realized that the pile of trees he observed would include tree trunks (see Pinero v Rite Aid of N.Y., 294 AD2d 251 [1st Dept 2002], affd 99 NY2d 541 [2002]). Plaintiff also failed to dispute defendants' evidence showing that the pile of trees did not dangerously obstruct the sidewalk so as to impede the flow of pedestrian traffic.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2016

CLERK