| Robinson v 206-16 Hollis Ave. Food Corp. |
| 2011 NY Slip Op 01637 [82 AD3d 735] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Ruth Robinson, Appellant, v 206-16 Hollis Ave. FoodCorp., Doing Business as Compare Foods, Respondent. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina, Andrea M. Alonso, andIryna Kravchanka of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Satterfield, J.), entered January 20, 2010, 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 tripped and fell over a display at the end of a merchandise rack whichwas between aisles in the defendant's grocery store. The display consisted of two small metalwire stands, each with four legs. On top of the stands was a board. Three five-gallon bucketscontaining pigs' tails for sale were upright on the board.
The plaintiff commenced this action to recover damages for personal injuries. She allegedthat the defendant created a dangerous condition as a result of its negligent placement of thedisplay. Following the completion of discovery, the defendant moved for summary judgmentdismissing the complaint on the ground that the display was open and obvious and that thecondition was not inherently dangerous as a matter of law. The Supreme Court granted themotion. We reverse.
The defendant submitted with its motion for summary judgment, inter alia, photographs ofthe scene taken shortly after the incident occurred, and the plaintiff's deposition transcript. Thephotographs show that the top of the buckets was approximately 1½ to 2 feet above thefloor. The display was at the end of a merchandise rack between two aisles. The plaintiff testifiedat her deposition that she did not see the display until she had already tripped over it uponmaking a turn after exiting an aisle.
"A store owner is charged with the duty of maintaining its premises in a reasonably safecondition for its patrons" (Gradwohl vStop & Shop Supermarket Co., LLC, 70 AD3d 634, 636 [2010]). To [*2]be entitled to summary judgment, the defendant was required toshow, prima facie, that it maintained its premises in a reasonably safe condition and that thedisplay, which as a matter of law was not inherently dangerous, was open and obvious (see Carson v Baldwin Union Free SchoolDist., 77 AD3d 878 [2010]; Cupo v Karfunkel, 1 AD3d 48 [2003]; see generally Neiderbach v 7-Eleven,Inc., 56 AD3d 632, 633 [2008]).
Here, viewing the evidence submitted in support of the defendant's motion for summaryjudgment in the light most favorable to the plaintiff (see Hantz v Fishman, 155 AD2d415, 416 [1989]), the defendant failed to make a prima facie showing of its entitlement tojudgment as a matter of law by establishing that it maintained the premises in a reasonably safecondition and that the display was open and obvious (see Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d634, 636 [2010]; Teleschevsky vRed Apple Fruit & Grocery Corp., 71 AD3d 667 [2010]; Sanchez v Toys "R"Us, 303 AD2d 165 [2003]; see alsoCarpenter v 130 W. Merrick, Inc., 71 AD3d 715 [2010]). Accordingly, the SupremeCourt should have denied the defendant's motion for summary judgment dismissing thecomplaint, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Florio, J.P., Belen, Lott and Austin,JJ., concur.