Zhao v. Brookfield Office Properties, Inc.

Zhao v Brookfield Off. Props., Inc. (2015 NY Slip Op 04573)

Zhao v Brookfield Off. Props., Inc.

2015 NY Slip Op 04573

Decided on May 28, 2015

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 May 28, 2015
Andrias, J.P., Moskowitz, DeGrasse, Gische, Kapnick, JJ.

15269 101323/12

[*1] Shulan Zhao, Plaintiff-Appellant,

v

Brookfield Office Properties, Inc., et al., Defendants-Respondents.

Ross, Legan, Rosenberg, Zelen & Flaks, LLP, New York (Richard H. Rosenberg of counsel), for appellant.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for respondents.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered June 17, 2014, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established entitlement to judgment as a matter of law in this action where plaintiff was injured when she allegedly lost her balance and fell when stepping off a low concrete platform onto a cobblestone-covered surface. Defendants demonstrated that the cobblestone-covered area was an open and obvious condition and was not inherently dangerous (see e.g. Abraido v 2001 Marcus Ave. LLC, 126 AD3d 571 [1st Dept 2015]). Defendants referred to evidence that plaintiff traversed the cobblestone-covered area before the accident and submitted photographs of the area showing its open and obvious nature, demonstrating that it was "readily observable by anyone employing the reasonable use of their senses" (Wachspress v Central Parking Sys. of N.Y., Inc., 111 AD3d 499, 499 [1st Dept 2013]).

In opposition, plaintiff failed to raise a triable issue of fact. Her argument that the cobblestones were obscured from view is unpreserved, as it is raised for the first time on appeal, and, in any event, is refuted by the photographic evidence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 28, 2015

CLERK