Maravalliv.Home Depot U.S.A., Inc.

Appellate Division of the Supreme Court of New York, Second DepartmentNov 22, 1999
266 A.D.2d 437 (N.Y. App. Div. 1999)
266 A.D.2d 437698 N.Y.S.2d 708

Submitted October 18, 1999

November 22, 1999

An appeal from the Supreme Court, Nassau County, Levitt, J.

Robert J. DeGroot, Massapequa, N.Y., for appellants.

Chesney Murphy, LLP, Baldwin, N.Y. (Henry D. Nelkin of counsel), for respondent.

LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, WILLIAM C. THOMPSON, WILLIAM D. FRIEDMANN, JJ.


MEMORANDUM BY THE COURT

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Levitt, J.), entered June 16, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs brought this action to recover damages for personal injuries allegedly sustained by James Maravalli when he fell over a sink vanity lying in the aisle of the defendant's store. The defendant, as one holding its property open to the public, had "a general duty to maintain it in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries" (Thornhill v. Toys "R" Us NYTEX, 183 A.D.2d 1071, 1072 ). However, "it is well settled that `[t]here is no duty on the part of a landowner to warn against a condition that can readily be observed by those employing the reasonable use of their senses'" (Ackermann v. Town of Fishkill, 201 A.D.2d 441, 443 , quoting Tarricone v. State of New York, 175 A.D.2d 308, 309 ; see, Rowell v. Town of Hempstead, 186 A.D.2d 553 ).

The presence of the sink vanity on the floor of the aisle in the instant case was not an inherently dangerous condition. Furthermore, since the sink vanity's location was readily observable, the defendant had no duty to warn the plaintiff of the condition (see, Binensztok v. Marshall Stores, 228 A.D.2d 534 ; Pilato v. Diamond, 209 A.D.2d 393 ; Brown v. New York Med. Coll. for Comprehensive Health Practice, 162 A.D.2d 139 ). Therefore, the court properly granted the defendant's motion for summary judgment (see, Pilato v. Diamond, supra; Brown v. New York Med. Coll. for Comprehensive Health Practice, supra).

The court properly exercised its discretion in entertaining the defendant's motion for summary judgment even though the motion was not made within the time constraints imposed by the court's preliminary conference order (see, CPLR 3212 [a]; Goldheart Intl. v. Vulcan Constr. Corp., 124 A.D.2d 507). Furthermore, the mere fact that a summary judgment motion is made on the eve of trial is not in and of itself sufficient reason for denying the motion, especially in a case such as this where the motion is so clearly meritorious (see, Latimer v. City of New York, 219 A.D.2d 622 ; Kule Resources v. Reliance Group, 49 N.Y.2d 587; Carvel Corp. v. Burstein, 99 A.D.2d 935, aff'd 62 N.Y.2d 638 ).

The plaintiffs' remaining contention is without merit.

BRACKEN, J.P., S. MILLER, THOMPSON, and FRIEDMANN, JJ., concur.