Gonzalez v. Mount Vernon Neighborhood Health Center, Inc. , 22 N.Y.S.3d 872 ( 2016 )

Gonzalez v Mount Vernon Neighborhood Health Ctr., Inc. (2016 NY Slip Op 00449)

Gonzalez v Mount Vernon Neighborhood Health Ctr., Inc.

2016 NY Slip Op 00449

Decided on January 26, 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 January 26, 2016
Friedman, J.P., Renwick, Saxe, Moskowitz, JJ.

19 307097/11

[*1]Georgette Gonzalez, Plaintiff-Appellant,

v

Mount Vernon Neighborhood Health Center, Inc., Defendant-Respondent.

Robert Dembia, P.C., New York (Robert Dembia of counsel), for appellant.

Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Mark Friedlander, J.), entered September 2, 2014, granting defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was proper in this action where plaintiff was injured when she tripped and fell over the base of a stanchion that was being used to create a pathway to a service window. The record establishes that the condition complained of was open, obvious and not inherently dangerous (see Villanti v BJ's Wholesale Club, Inc., 106 AD3d 556 [1st Dept 2013]; Broodie v Gibco Enters., Ltd., 67 AD3d 418 [1st Dept 2009]).

Supreme Court properly refused to consider the statutes and administrative regulations that were purportedly violated since they were raised by plaintiff for the first time in opposition to the summary judgment motion (see e.g. Jean-Baptiste v 153 Manhattan Ave. Hous. Dev. Fund Corp., 124 AD3d 476 [1st Dept 2015]). In any event, as found by the court, the cited statutes and regulations are not applicable to the facts of this matter.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2016

CLERK