Opinion
172
Decided December 12, 2002.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered May 28, 2002, which, with two Justices dissenting, affirmed an order of the Supreme Court (Diane Lebedeff, J.), entered in New York County, granting a motion by defendant for summary judgment dismissing the complaint.
Plaintiff sustained injuries at defendant store when an assistant manager, who attempted to pass her three boxes of food across the top of a wagon located in an aisle, dropped the boxes, and plaintiff fell when she tried to grab the boxes.
Supreme Court granted defendant's motion for summary judgment, concluding that the store owed no duty to plaintiff since the wagon was in plain view and there was no hazardous condition presenting a foreseeable danger; and that, taking the record as a whole, the isolated action of the assistant manager in dropping the boxes was an insufficient basis for a negligence claim as a matter of law.
The Appellate Division affirmed, concluding that the risk of danger in the assistant manager's act of passing the boxes over the wagon was minimal and unforeseeable as a matter of law.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs.
The Appellate Division properly determined that plaintiff's accident was not within the reasonably foreseeable risks of the defendant's alleged negligence (see, Di Ponzio v. Riordan, 89 N.Y.2d 578, 583-584).