WEHR
v.
RAILROAD COMP

Appellate Division of the Supreme Court of New York, Second DepartmentMar 27, 2007
38 A.D.3d 880 (N.Y. App. Div. 2007)
38 A.D.3d 880832 N.Y.S.2d 6482007 N.Y. Slip Op. 2745

No. 2006-07165.

March 27, 2007.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Mahon, J.), entered March 21, 2006, which, upon granting the defendants' motion pursuant to CPLR 4401, made at the close of the plaintiffs case, to dismiss the complaint for failure to establish a prima facie case, is in favor of the defendants and against her, dismissing the complaint.

Thaler Gertler, LLP, Westbury, N.Y. (Jeffrey L. Solomon of counsel), for appellant.

Mary Jennings Mahon, Jamaica, N.Y. (J. Dennis McGrath of counsel), for respondents.

Before: Mastro, J.P., Florio, Carni and McCarthy, JJ., concur.


Ordered that the judgment is affirmed, with costs.

"To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant" ( Velez v Goldenberg, 29 AD3d 780, 781; see Szczerbiak v Pilat, 90 NY2d 553, 556; Tapia v Dattco, Inc., 32 AD3d 842, 844). "In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" ( Szczerbiak v Pilat, supra at 556). Applying this standard, the Supreme Court properly granted the defendants' motion. The defendants had "`no duty to protect or warn against an open and obvious condition which, as a matter of law, [was] not inherently dangerous'" ( Fernandez v Edlund, 31 AD3d 601, 602, quoting Jang Hee Lee v Sung Whun Oh, 3 AD3d 473, 474; see Cupo v Karfunkel, 1 AD3d 48, 51-52).