| Gradwohl v Stop & Shop Supermarket Co., LLC |
| 2010 NY Slip Op 00808 [70 AD3d 634] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Amalia Gradwohl et al., Appellants, v Stop & ShopSupermarket Company, LLC, Respondent. |
—[*1] Torino & Bernstein, P.C., Mineola, N.Y. (Bruce A. Torino and Eva J. Tompkins of counsel),for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Kitzes, J.), dated November 17, 2008, 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.
On November 12, 2006, the plaintiff Amalia Gradwohl (hereinafter the injured plaintiff)allegedly tripped and fell over an empty "U-boat" dolly that had been left unattended in theproduce aisle at a Stop & Shop Supermarket in Maspeth (hereinafter the defendant's premises).
The injured plaintiff and her husband, suing derivatively, commenced this action to recoverdamages for personal injuries allegedly sustained as a result of the defendant's allegednegligence. The complaint alleged, inter alia, that the U-boat dolly constituted a tripping hazard.Following the completion of discovery, the defendant moved for summary judgment dismissingthe complaint on the ground that the U-boat dolly was open and obvious and that its placementdid not constitute a dangerous condition as a matter of law. The Supreme Court granted themotion. We reverse.
The injured plaintiff testified at her deposition that, on the day in question, she went to thedefendant's premises to shop with her husband and their daughter. The injured plaintiff was inthe store for approximately 20 minutes before the accident occurred. Immediately prior to theaccident, the injured plaintiff had been looking to her right in the direction of her husband. Whenher husband pointed to certain onions in the direction of the produce wall, the plaintiff turned toher left to select some onions, tripped over the U-boat dolly, and landed on the floor.
The plaintiffs testified that the U-boat dolly was dark-colored, approximately six feet long,15 inches to two feet wide, on wheels, and very low to the ground. The photographs and thedeposition [*2]testimony submitted in support of the motiondemonstrated that the U-boat dolly had a platform and blue or dark handles at both ends. Thevarious witnesses employed by the defendant testified that the U-boat dollies were used by storepersonnel to move merchandise between the stock room and the merchandise floor. Thedefendant's employees also testified that unattended U-boat dollies were required to be removedimmediately from the merchandise floor and not left on the merchandise floor. The injuredplaintiff and her husband testified that they did not see the U-boat dolly that day prior to theaccident. Indeed, one of the store managers testified that she did not recall observing a U-boatdolly without merchandise on it when she made her tour of the produce aisle a short time beforethe accident.
A store owner is charged with the duty of maintaining its premises in a reasonably safecondition for its patrons (see generally Peralta v Henriquez, 100 NY2d 139, 143 [2003]).To be entitled to summary judgment, the defendant was required to show, prima facie, that itmaintained its premises in a reasonably safe condition and that it did not have notice of or createa dangerous condition that posed a foreseeable risk of injury to persons expected to be on thepremises (see Westbrook v WRActivities-Cabrera Mkts., 5 AD3d 69, 71 [2004]; Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475, 476 [2004];Thornhill v Toys "R" Us NYTEX, 183 AD2d 1071, 1072-1073 [1992]).
Here, the defendant does not argue that it did not create the condition of which the plaintiffscomplain. Indeed, the defendant acknowledges that the U-boat dollies were for the use of storeemployees and not for the use of store patrons (see Schloss v Stew Leonard's Yonkers,LLC, 24 AD3d 223 [2005]). Rather, the defendant contends that it is entitled to judgmentas a matter of law because the U-boat dolly was an open and obvious condition and that itsplacement did not constitute a tripping hazard (see Cupo v Karfunkel, 1 AD3d 48, 52 [2003]).
Proof that a dangerous condition is open and obvious merely negates the defendant'sobligation to warn of the condition, but does not preclude a finding of liability against alandowner for failure to maintain the property in a safe condition (see Cupo v Karfunkel,1 AD3d at 52; see also Slatsky v GreatNeck Plumbing Supply, Inc., 29 AD3d 776, 777 [2006]; Vinci v Vasaturo, 8 AD3d 262,263 [2004]; Westbrook v WR Activities-Cabrera Mkts, 5 AD3d at 71). While such proofis relevant to the issue of a plaintiff's comparative negligence (see Cupo v Karfunkel, 1AD3d at 52; see also Femenella vPellegrini Vineyards, LLC, 16 AD3d 546, 547 [2005]; Vinci v Vasaturo, 8AD3d at 263; Westbrook v WR Activities-Cabrera Mkts, 5 AD3d at 72), a hazard that isopen and obvious "may be rendered a trap for the unwary where the condition is obscured bycrowds or the plaintiff's attention is otherwise distracted" (Mauriello v Port Auth. of N.Y. & N.J.,8 AD3d 200, 200 [2004] [emphasis added and citations omitted]; see Michalski v HomeDepot, Inc., 225 F3d 113, 120 [2000]).
Here, viewing the evidence submitted in support of the defendant's summary judgmentmotion in the light most favorable to the plaintiffs, the nonmoving parties (see generally Fundamental PortfolioAdvisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106 [2006]), thedefendant failed to establish as a matter of law that it maintained the premises in a reasonablysafe condition (see Schloss v Stew Leonard's Yonkers, LLC, 24 AD3d at 223;Mauriello v Port Authority of N.Y. & N.J., 8 AD3d at 200-201; Westbrook v WRActivities-Cabrera Mkts, 5 AD3d at 75; Sanchez v Toys "R" Us, 303 AD2d 165[2003]; Michalski v Home Depot, 225 F3d at 121; see also McLachlan v R & S, Inc., 52 AD3d 662 [2008];Moloney v Wal-Mart Stores, 2 AD3d 508, 509-510 [2003]).
Further, recent cases from this Court involving similar devices are distinguishable and do notcommand a different result (see e.g.Stern v Costco Wholesale, 63 AD3d 1139 [2009] [plaintiff fell over a shopping cart thatwas available for use by store patrons]; Bernth v King Kullen Grocery Co., Inc., 36 AD3d 844 [2007][plaintiff conceded that he observed several similar carts in the aisle before his fall, including thesubject cart with which his foot came in contact and which had bright orange handles]).
Since the defendant did not meet its prima facie burden, it is unnecessary to consider theadequacy of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]).
Accordingly, the Supreme Court erred in granting the defendant's motion for summaryjudgment dismissing the complaint. Skelos, J.P., Dickerson, Lott and Roman, JJ., concur.