Opinion
2001-06903
Argued March 1, 2002.
April 15, 2002.
In an action to recover damages for personal injuries, etc., the defendants Sam's East, Inc., d/b/a Sam's Club and Wal-Mart Stores, Inc., appeal from an order of the Supreme Court, Westchester County (Cowhey, J.), entered July 3, 2001, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
Brody, O'Connor O'Connor, Northport, N.Y. (Patricia A. O'Connor, Thomas M. O'Connor, and Scott Brody of counsel), for appellants.
James J. Killerlane, White Plains, N.Y. (Thomas Iannuccilli of counsel), for respondents.
Before: SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER, THOMAS A. ADAMS, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed.
There is no duty on the part of a landowner to warn against a condition that is readily observable by those employing the reasonable use of their senses (see Hughey v. Wal-Mart, 275 A.D.2d 441; Cherry v. Hofstra, 274 A.D.2d 443; Meyer v. Tyner, 273 A.D.2d 364; Paulo v. Great Atl. Pac. Tea Co., 233 A.D.2d 380).
The appellants established a prima facie case that the concrete barrier over which the injured plaintiff fell was clearly visible (see Dominitz v. Food Emporium, 271 A.D.2d 640; Plessias v. Scalia Home for Funerals, 271 A.D.2d 423). In opposition, the plaintiffs failed to raise a triable issue of fact. Therefore, the Supreme Court erred in denying the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.
S. MILLER, J.P., KRAUSMAN, H. MILLER and ADAMS, JJ., concur.