Opinion
2021-05821 Index 160645/18
10-26-2021
Nicholas Natoli, Plaintiff-Appellant, v. Trader Joe's East Inc. Doing Business as Trader's Joe's, et al., Defendants-Respondents. Appeal No. 14493 Case No. 2020-04998
Law Offices of Kevin T. Grennan, PLLC, Garden City (Kevin T. Grennan of counsel), for appellant. Conway, Farrell, Curtin & Kelly, P.C., New York (Anne Marie Esposito of counsel), for respondents.
Law Offices of Kevin T. Grennan, PLLC, Garden City (Kevin T. Grennan of counsel), for appellant.
Conway, Farrell, Curtin & Kelly, P.C., New York (Anne Marie Esposito of counsel), for respondents.
Before: Gische, J.P., Webber, Mazzarelli, Shulman, Pitt, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered December 10, 2019, which denied plaintiff's motion for partial summary judgment on liability and to dismiss defendants' affirmative defense of comparative fault, unanimously modified, on the law, to grant the motion for partial summary judgment as to liability, and otherwise affirmed, without costs.
Plaintiff Nicholas Natoli alleged that on October 5, 2018, at about 8:15 p.m., as he entered the Trader Joe's supermarket located at 675 6th Avenue, he sustained physical injuries when a shopping cart hit him causing him to fall to the ground. On summary judgment, plaintiff met his prima facie burden by submitting evidence, including a witness statement indicating that defendant Jovani, an employee of defendant Trader Joe's, pushed a row of carts forward causing plaintiff to be struck as he walked past it (see Posada v Great Atl. & Pac. Tea Co., 70 A.D.3d 1019 [2d Dept 2010]).
In opposition, defendants failed to submit any evidence and therefore did not raise a triable issue of fact as to liability (id.). Although depositions had not yet been conducted, defendants failed to demonstrate that facts essential to justify opposition to that portion of the motion may exist but could not be stated (see CPLR 3212[f]). Defendants failed to identify what information is in the exclusive control of plaintiff that would raise a material issue of fact such that CPLR 3212 (f) would warrant denial of the motion (see McDaniel v Codi Transp., Ltd., 149 A.D.3d 595, 596 [1st Dept 2017]). Furthermore, plaintiff was not required to eliminate issues of fact as to his own comparative negligence in order to be entitled to partial summary judgment (Rodriguez v City of New York, 31 N.Y.3d 312 [2018]). Accordingly, plaintiff established prima facie entitlement to partial summary judgment against defendant on the issue of liability.
Nevertheless, dismissal of the affirmative defense of plaintiff's alleged comparative fault is unwarranted at this stage of the litigation. Given that defendants have not yet had an opportunity to depose plaintiff, plaintiff's bare assertion in his affidavit that he had no opportunity to react and avoid the accident is insufficient to eliminate issues of fact as to whether he is free from comparative negligence (see Gonzalez v Arc Interior Constr., 83 A.D.3d 418, 419 [1st Dept 2011]).