| McGrath v George Weston Bakeries, Inc. |
| 2014 NY Slip Op 03734 [117 AD3d 1303] |
| May 22, 2014 |
| Appellate Division, Third Department |
[*1]
| Thomas McGrath et al., Respondents, v GeorgeWeston Bakeries, Inc., et al., Appellants. |
Thorn Gershon Tymann & Bonanni, Albany (Erin Mead of counsel), forappellants.
Law Offices of Mark Schneider, Plattsburgh (Mark Schneider of counsel), forrespondents.
Peters, P.J. Appeal from an order of the Supreme Court (Muller, J.), entered June 18,2013 in Clinton County, which, among other things, denied defendants' motion forsummary judgment dismissing the complaint.
Plaintiff Thomas McGrath (hereinafter plaintiff), a tractor trailer driver employed byPenske Logistics, was responsible for transporting bread products between defendants'facilities in various locations throughout upstate New York. Defendants' employeesplaced the bread on "interlocking" plastic trays, stacked them 15 high on wheeled dolliesand loaded them onto trailers for transport. On February 28, 2007, plaintiff picked up atrailer of bread from defendants' facility in the Town of Colonie, Albany County to bedelivered to defendants' depot in the City of Glens Falls, Warren County. Upon arrivingat the Glens Falls facility, plaintiff opened the trailer door, removed the load bar holdingthe dollies in place and began unloading the truck. At some point in the process ofunloading, as plaintiff was pushing one dolly of bread and pulling another, several traysfrom the rack he was pulling fell and struck him in the head and neck. Plaintiff and hiswife, derivatively, commenced this action alleging that defendants negligently stackedthe trays on dollies, failed to properly secure the load in the tractor trailer, and did notmaintain proper and adequate unloading facilities. Following joinder of issue anddiscovery, defendants moved for summary judgment dismissing the complaint andplaintiffs cross-moved for leave to serve an amended complaint. Supreme Court deniedboth motions, and defendants appeal.
[*2] As theproponents of the summary judgment motion, defendants bore the initial burden ofdemonstrating that they maintained the premises in a reasonably safe condition andneither created nor had actual or constructive notice of the allegedly dangerous condition(see Dillenbeck vShovelton, 114 AD3d 1125, 1126 [2014]; Flahive v Union Coll., 99 AD3d 1151, 1152 [2012]; Cietek v Bountiful Bread ofStuyvesant Plaza, Inc., 74 AD3d 1628, 1629 [2010]). With respect to plaintiffs'allegations regarding the Glens Falls facility, defendants proffered the expert affidavit ofa civil engineer who personally inspected the facility, concluded that the design andconstruction of its loading dock and floor were in compliance with all applicable codes,and opined that no dangerous conditions or defects existed that would have caused orcontributed to plaintiff's accident. Defendants also submitted the deposition testimony oftheir regional distribution manager and an employee responsible for conducting safetyaudits at the Glens Falls facility, both of whom stated that no complaints had been maderegarding the facility's flooring or its condition prior to the accident. This evidence wassufficient to meet defendant's initial burden of making a prima facie showing that it keptthe facility's unloading area in a reasonably safe condition (see Hyatt v Price ChopperOperating Co., Inc., 90 AD3d 1218, 1220 [2011]; Cietek v Bountiful Breadof Stuyvesant Plaza, Inc., 74 AD3d at 1629; Cerkowski v Price Chopper Operating Co., Inc., 68 AD3d1382, 1383 [2009]; Ensherv Charlton, 64 AD3d 1032, 1033 [2009]). In opposition, plaintiffs failed tosubmit any evidence raising a triable issue of fact as to whether a dangerous or defectivecondition existed with respect to the unloading area.
With respect to plaintiffs' allegations regarding the bread trays utilized by defendantsand the manner in which they were stacked on dollies and secured within the trailer bydefendants' employees, defendants' expert merely averred that the bread trays at issuewere "common in the industry" and "appropriate" for the use to which defendants putthem. Moreover, although defendants' witnesses described the general procedure forloading bread trays onto the dollies and securing them in the trucks, neither had anypersonal knowledge as to whether this was properly done on the day of the accident (see Jackson v Manhattan Mall EatLLC, 111 AD3d 519, 520 [2013]; Madalinski v Structure-Tone, Inc., 47 AD3d 687, 688[2008]; Monge v Home Depot, 307 AD2d 501, 502 [2003]; Connor v TeeBar Corp., 302 AD2d 729, 730-731 [2003]; Montuori v Town of Colonie,277 AD2d 643, 645 [2000]).
Even assuming that this evidence was sufficient to demonstrate, as a matter of law,that defendants neither created the dangerous condition that caused plaintiff's accidentnor had actual or constructive notice of it, plaintiffs have raised triable questions of factthat preclude an award of summary judgment. In opposition to the motion, plaintiffssubmitted affidavits from two of Penske's former employees. Both asserted that theydelivered bread products to the Glens Falls facility by the same means as plaintiff andthat the trays were often improperly stacked by defendants' employees, causing them tobe unstable and fall without warning. One further averred that, unlike trays previouslyused by defendants that were held secure by a metal rod, the trays at issue here did nottruly interlock with one another, particularly those "mismatched" trays that were ofdifferent colors.[FN*]
Additionally, they both claimed that they had made complaints to defendants'employees about the trays and how they were stacked, yet nothing was done to correctthe situation. Plaintiffs' expert averred that bread trays from different manufacturers haveslightly different physical characteristics and dimensions and do not nest properly withinone [*3]another. Considering this evidence in a lightmost favorable to plaintiffs and according them the benefit of every reasonable inferencethat can be drawn therefrom (see Stevenson v Saratoga Performing Arts Ctr., Inc., 115 AD3d1086, 1087 [2014]; Beckerleg v Tractor Supply Co., 107 AD3d 1208, 1209[2013]), we conclude that questions of fact remain as to whether defendants' employeescreated the hazardous condition that caused plaintiff's accident and whether defendantshad notice of a recurrent, dangerous condition with respect to the bread trays (see Black v Kohl's Dept. Stores,Inc., 80 AD3d 958, 961 [2011]; Mazerbo v Murphy, 52 AD3d 1064, 1066-1067 [2008],appeal dismissed 11 NY3d 770 [2008]; Rosati v Kohl's Dept. Stores, 1 AD3d 674, 675 [2003];Garcia v U-Haul Co., 303 AD2d 453, 454 [2003]; Golden v CoinmachIndus., 273 AD2d 4, 5-6 [2000]; McLaughlan v Waldbaums, Inc., 237 AD2d335, 335 [1997]).
Finally, we reject defendants' contention that summary judgment is warrantedbecause plaintiffs cannot identify exactly what caused the trays to fall. The absence ofdirect evidence of causation does not necessarily compel a grant of summary judgment,as proximate cause may be inferred from the facts and circumstances underlying theinjury (see Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744 [1986]; Seelinger v Town ofMiddletown, 79 AD3d 1227, 1229-1230 [2010]). Plaintiff testified that thebread trays fell from the dolly because the stack was unstable, and "the fact that othercauses might exist for [the accident] establishes a question of fact as to proximate causewhich must be resolved by a trier of fact" (Gerfin v North Colonie Cent. School Dist., 41 AD3d 1085,1086-1087 [2007]; accord Bushv Mechanicville Warehouse Corp., 69 AD3d 1207, 1209 [2010]; see Litts v Best Kingston Gen.Rental, 7 AD3d 949, 951 [2004]).
Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *:Photographs submittedby defendants on their motion confirm their use of different colored trays to transportbread products.