| Sutter v Inserra Supermarkets, Inc. |
| 2013 NY Slip Op 01544 [104 AD3d 759] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Gael Sutter, Appellant, v Inserra Supermarkets,Inc., Respondent. |
—[*1] Shearer & Dwayer, LLP, Mineola, N.Y. (Douglas Shearer of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from ajudgment of the Supreme Court, Rockland County (Garvey, J.), dated October 26, 2011,which, upon the granting of the defendant's motion pursuant to CPLR 4401 for judgmentas a matter of law, made at the close of the plaintiff's case, is in favor of the defendantand against her, dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the motion is denied,the complaint is reinstated, and the matter is remitted to the Supreme Court, RocklandCounty, for a new trial.
At trial, the plaintiff testified that, as she retrieved a box of cereal from a display atthe defendant's supermarket, she was struck in the head by an object. Another witnesstestified that there was a metal shelf amongst the cereal boxes strewn about the locationin which the plaintiff had fallen to the ground. The plaintiff's expert, an architect with 13years of experience in the grocery store industry, opined that an unstable display fell onthe plaintiff based on the evidence regarding the plaintiff's height, that she had to reachup to get the box of cereal, and that there were other boxes stacked even higher than theone retrieved by the plaintiff.
At the close of the plaintiff's case, the defendant moved pursuant to CPLR 4401 forjudgment as a matter of law. The motion was granted and a judgment was entered infavor of the defendant, dismissing the complaint.
"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law isappropriate where the trial court finds that, upon the evidence presented, there is norational process by which the fact trier could base a finding in favor of the nonmovingparty" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Rivera v New York Presbyt.Hosp., 95 AD3d 861, 862 [2012]; Glazer v Ottimo, 84 AD3d 1023, 1024 [2011]). Applyingthis standard, the Supreme Court improperly granted the defendant's motion (seeTormey v Shell Oil Co., 309 AD2d 856, 856 [2003]).[*2]
Accepting the evidence submitted as part of theplaintiff's case at trial as true, and according it every favorable inference, the plaintiffmade out a prima facie case that the defendant failed to maintain its premises in areasonably safe condition. A rational trier of fact could conclude, from the evidencepresented, that the plaintiff was struck by a metal shelf that was part of the unstablecereal display. Under these circumstances, the plaintiff made out a prima facie case andthe matter should have been submitted to the jury (see Dedeoglou v Beckles, 84AD2d 827 [1981]).
The plaintiff correctly contends that, at the new trial, she should be permitted tointroduce evidence regarding her injuries. However, such evidence should be permittedonly to the extent it is relevant to identify the object that struck the plaintiff. Skelos, J.P.,Leventhal, Hall and Lott, JJ., concur.