| Lehr v Mothers Work, Inc. |
| 2010 NY Slip Op 04237 [73 AD3d 564] |
| May 18, 2010 |
| Appellate Division, First Department |
| Annette Lehr et al., Appellants, v Mothers Work, Inc.,Respondent. |
—[*1] Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), forrespondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 31, 2009,which granted defendant's motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, the motion denied, and the complaint reinstated.
Plaintiff Annette Lehr allegedly sustained personal injuries when she tripped over the leg ofa clothing rack and fell into an adjacent rack of clothes in defendant's store. She contends thatdefendant created a dangerous condition by placing the racks too close together and that anadditional hazard existed because clothing strewn haphazardly on the racks and floor obscuredthe legs and wheels of the racks. Plaintiffs' daughter, who was with her mother at the store thatday, stated in her affidavit that she had complained to a sales clerk on two earlier visits about theracks being too close together to navigate around, and that the racks were overloaded withclothes then strewn about.
The daughter's affidavit, coupled with Annette Lehr's testimony concerning the closeness ofthe racks, is sufficient to establish a triable issue as to whether defendant created a dangerouscondition in the manner in which racks were placed on the day of the accident. The affidavit alsoprovides evidence of notice of a recurring condition of garments strewn about and racksoverloaded, which would also create an issue of fact as to whether there was an ongoing hazardat the store that was routinely ignored, and caused this accident (see Mullin v 100 Church LLC, 12AD3d 263 [2004]; Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107[2003]; David v New York City Hous. Auth., 284 AD2d 169 [2001]).
Although defendant argues it had sufficient maintenance procedures in place to make surethat clothing was removed from the floor and that the racks were properly placed, there aretriable issues as to the condition of the store and the placement of the racks at the time of the[*2]accident. The record is insufficient to establish entitlement tosummary judgment as a matter of law (see Cignarella v Anjoe-A.J. Mkt., Inc., 68 AD3d 560 [2009]).Concur—Nardelli, J.P., McGuire, Acosta, Freedman and RomÁn, JJ.