McLACHLAN v. DELI

Ordered that the judgment is affirmed, with costs.

The plaintiff Miriam McLachlan brought this action on behalf of her son, Jacob, a 10-year-old boy at the time of the incident, who injured his thumb when he tripped over a small cardboard box on the floor of the defendant's store. At the close of evidence, the defendant moved pursuant to CPLR 4401 for judgment as a matter of law. Judgment as a matter of law in favor of a landowner is appropriate where the complained of condition on the land is "both open and obvious and, as a matter of law, [is] not inherently dangerous" (Cupo v Karfunkel, 1 AD3d 48, 52). Based on the trial evidence here, the trial court properly denied the defendant's motion ( see Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 70).

The jury's awards of $90,000 for past pain and suffering and $70,000 for future pain and suffering were not excessive, as they did not deviate materially from what would be reasonable compensation ( see CPLR 5501; Biejanov v Guttman, 34 AD3d 710; Harris v City of New York, 2 AD3d 782; Louis v St. Victor, 202 AD2d 479; Rodriguez v City of New York, 191 AD2d 420).

The defendant's remaining contentions are without merit.