Lazar v. Burger Heaven

Oct 25, 2011
Versions:88 A.D.3d 591
931 N.Y.2d 296

Defendants established their prima facie entitlement to judgment as a matter of law. Defendants submitted evidence showing that the chair was an open and obvious condition and not inherently dangerous (see Matthews v Vlad Restoration Ltd., 74 AD3d 692 [2010]; Schulman v Old Navy/Gap, Inc., 45 AD3d 475 [2007]). Defendants also demonstrated that the placement of the café‘s chairs on the sidewalk was in compliance with 34 RCNY 2-10 (c) (1), which provides that “[e]ight feet or one-half the sidewalk width, whichever is greater, shall be maintained by the permittee for unobstructed pedestrian passage.”

In opposition, plaintiffs failed to raise a triable issue of fact. Indeed, plaintiff admitted to having previously observed the alleged condition and does not maintain that the condition was obscured (compare Centeno v Regine‘s Originals, 5 AD3d 210 [2004]). Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.