Price v Staples The Off. Superstore E., Inc., 2011 NY Slip Op 04745 [85 AD3d 447]

June 7, 2011

Appellate Division, First Department

— [*1]

Elovich & Adell, Long Beach (Mitchel Sommer of counsel), for appellant.

Simmons Jannace, LLP, Syosset (Allison C. Leibowitz of counsel), for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered May 19, 2010, which, in this action for personal injuries sustained when plaintiff tripped over a rolled-up carpet in the aisle of defendant’s store and fell to the ground, granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Dismissal of this action was not warranted because even assuming that the evidence demonstrates that the carpet was visible from all directions and compels the conclusion that the hazard was open and obvious ( see Tagle v Jakob , 97 NY2d 165, 169 [2001]), triable issues exist as to whether defendant breached its duty to maintain the premises in a reasonably safe condition ( see Westbrook v WR Activities-Cabrera Mkts. , 5 AD3d 69 [2004]). A jury could reasonably conclude that the rolled up carpeting constituted a tripping hazard ( see id. ; Sweeney v Riverbay Corp. , 76 AD3d 847 [2010]). Concur—Saxe, J.P., DeGrasse, Freedman, Abdus-Salaam and Manzanet-Daniels, JJ..