| Naletilic v Dan's Key Food |
| 2008 NY Slip Op 00666 [47 AD3d 903] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Margaret Naletilic, Appellant, v Dan's Key Food,Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (James Kulovitz andRichard E. Lerner of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Dollard, J.), dated December 21, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff allegedly slipped and fell on a piece of plastic wrapping on the floor of an aislein the defendant's supermarket. She testified at her deposition that when she entered the aislewhile grocery shopping, she observed that it was neat and clean. Moreover, an employee of thedefendant was present in the aisle, stocking some shelves with jars of jelly. Soon thereafter, theplaintiff realized that she had forgotten one of the items she needed, and she turned and walkedback up the aisle. After traveling a short distance, she allegedly slipped and fell on the piece ofplastic, which she had not noticed earlier. The employee working nearby helped her up, and shethen observed that he had been removing the jars of jelly from plastic-wrapped cases which hadbeen placed on the aisle floor. The plastic which she slipped on appeared to be the same as theplastic wrapping on the cases.
The defendant produced its assistant manager for a deposition. He had no personalknowledge regarding the accident, but confirmed that some cases of merchandise are wrapped in[*2]plastic. He further stated that stock persons are not providedwith any receptacles in which to place the plastic wrapping while they are performing their work.
Under these circumstances, the Supreme Court erred in granting the defendant's motion forsummary judgment, since the defendant failed to make a prima facie showing of entitlement tojudgment as a matter of law. Issues of fact remain as to whether the defendant created thedangerous condition (see Belogolovkinv 1100-1114 Kings Highway LLC, 35 AD3d 514 [2006]; Scott v Beverly Hills Furniture, 30AD3d 577 [2006]; Feldmus v RyanFood Corp., 29 AD3d 940 [2006]; Marino v Stop & Shop Supermarket Co., 21 AD3d 531 [2005]). Inthis regard, the defendant's reliance upon purported evidence of the procedures it follows to keepthe aisles free of hazards is unavailing, since the single vague statement by the assistant managerthat he generally "discussed with [his] employees how to perform their duties . . .and keeping the aisle clear of debris" was inadequate to establish the nature and sufficiency ofany procedures utilized. Prudenti, P.J., Mastro, Santucci and Lifson, JJ., concur.