Opinion
500084/15
04-21-2017
Noelia Olivares, Plaintiff, v. Immortal Rise, Inc. d/b/a C-Town Supermarket, Defendant.
Attorney for Plaintiffs Eppinger, Reingol & Korder 131 Larchmont Avenue, P.O. Box 868 Larchmont, New York 10538 914-833-0500 Attorneys for Defendant O'Connor, O'Connor, Hintz & Deveney, LLP 1 Huntington Quadrangle, Suite 1C-10 Melville, New York 11747
Attorney for Plaintiffs
Eppinger, Reingol & Korder
131 Larchmont Avenue, P.O. Box 868
Larchmont, New York 10538
914-833-0500 Attorneys for Defendant
O'Connor, O'Connor, Hintz & Deveney, LLP
1 Huntington Quadrangle, Suite 1C-10
Melville, New York 11747 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff Noelia Olivares (hereinafter plaintiff or Olivares) filed on January 16, 2017, under motion sequence number two, for an order pursuant to CPLR 3212 granting summary judgment in her favor on the issue of liability as against defendant Immortal Rise, Inc. d/b/a C-Town Supermarket (hereinafter defendant or C-Town). Notice of motion Affirmation in support Exhibits 1 - 9 Affirmation in opposition Affirmation in reply
BACKGROUND
On January 6, 2015, Olivares commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. C-Town joined issue by verified answer dated March 10, 2015. The verified complaint alleges in pertinent part that on July 13, 2013, Olivares was lawfully at a C-Town supermarket owned and operated by Immortal Rise, Inc. located at 4705 5th Avenue, Brooklyn, New York (hereinafter the premises) when she was caused to fall and injure herself due to a C-Town employee's negligent performance of his work (hereinafter the incident).
C-Town's verified answer contains seven affirmative defenses and admits that on July 13, 2013, it was a domestic business corporation operating a C-Town supermarket at the premises.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).
"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]). The movant's burden is to establish that there are no triable issues of fact.
In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff (Daily v Tops Markets, LLC., 134 AD3d 1332, 1333 [3rd Dept 2015]). To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff (Vetrone v Ha Di Corp., 22 AD3d 835, 837 [2nd Dept 2005]). "To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault" (Bowen v Farrell, 140 AD3d 1001[2nd Dept 2016], citing, Phillip v D & D Carting Co., Inc., 136 AD3d 18, 22 [2nd Dept 2015]).
In support of the instant motion Olivares submitted, among other things, an affidavit of Orlando Gonzalez (hereinafter Gonzalez), the deposition transcript of Arianne Chandral (hereinafter Chandral), and her own deposition transcript. Gonzalez was accompanying Olivares while she was shopping at C-Town and personally witnessed the incident. Chandral is a manager of C-Town who heard the incident and saw Olivares and Leo, a C-Town employee, immediately after the accident.
Olivares' deposition testimony establishes that on July 3, 2013, at around 11:00 a.m., she was shopping at C-Town accompanied by Gonzalez. When she entered the aisle containing cans of beans she encountered Leo, an employee of C-Town. At that time, Leo was holding a hand truck (also known as a "dolly") stacked with three or four unsecured cardboard boxes containing store products. The hand truck stood upright, had two wheels, and a flat portion on the bottom which held the boxes. Olivares was about six to eight inches away from Leo and about two inches from the boxes on the hand truck when she entered into the bean aisle. Olivares did not move and told Leo to be careful. Leo then made a motion to unload the boxes from the hand truck to the floor. When he did so the unsecured boxes fell and struck Olivares causing her to fall and injure herself. Leo then started laughing.
The Court has mentioned the testimony of Olivares, Chandral and Gonzales pertaining to Leo laughing for the sole purpose of tying all three testimonies to the incident at the same time.
Chandral's deposition testimony establishes that on July 3, 2013 at around 11:00 a.m., she was one of several C-Town store managers on duty. Although she did not see the boxes fall from the hand truck, she was close enough to hear the commotion. When she walked over to the aisle where she heard the commotion, she saw Leo, whom she recognized as a C-Town employee. She also saw Olivares, a hand truck and a box on the floor. At that time, she heard Olivares speaking in Spanish and in an agitated fashion to Leo and she saw Leo laughing at Olivares.
Gonzalez's affidavit avers that she saw a C-Town worker in the bean aisle unloading boxes from a hand truck, that she told the worker to be careful and that the worker let go of the hand truck in a way that caused the boxes to fall and strike Olivares. Gonzalez also saw Leo laughing at Olivares after the incident.
There is no dispute that at the time of the incident C-Town was open for business and that customers were free to roam through the open aisles to shop. There is also no dispute that Leo, an employee of C-Town supermarket, was acting within the scope of his employment when he was moving cardboard boxes containing store products into the bean aisle. It was, therefore, forseeable that a customer might walk through the open aisle in which Leo was working.
Leo had a duty to use reasonable care in maneuvering the loaded hand truck so as not to strike anyone or drop its content on anyone. It is foreseeable that a failure to handle the hand truck with reasonable care could cause such an accident. Furthermore, by actually telling Leo to be careful before the incident occurred, Olivares made him aware of her presence and of the need to be careful.
Olivares' claim that Leo was negligent in the handling of the hand truck and its contents was bourne out by the fact that the boxes fell on her. Chandral's testimony does not differ in any material way from Olivares testimony, in fact, in may ways the testimony is consistent. She places Leo, Olivares, a hand truck and a box on the floor immediately after the incident. She also sees Leo laughing at Olivares.
The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment (Brandford v Singh, 136 AD3d 736, 738 [2nd Dept 2016]). "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business" (Id.) Pursuant to the doctrine of respondeat superior, an employer may be liable when an employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment (Id.).
Under these circumstances, Olivares has made a prima facie showing that Leo, a C-Town's employee, acting within the scope of his employment, breached a duty of care to her by negligently handling his hand truck. Olivares has also shown that the breach of that duty caused the boxes to fall upon her and to injure her (Vetrone v Ha Di Corp., 22 AD3d 835, 837 [2nd Dept 2005]). Applying the doctrine of repondeat superior, Olivares has also shown that the defendant is vicariously liable for Leo's act of negligence committed while acting within the scope of his employment (Brandford v Singh, 136 AD3d 736, 738 [2nd Dept 2016]). By doing so, Olivares has shifted the burden to C-Town to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).
In opposition, C-Town claim that the Olivares' evidentiary submission raises a triable issue of fact regarding her own comparative fault. However, considering Olivares' evidentiary submission in the light most favorable to C-Town, there is no rational view of the evidence by which one could find that Olivares' conduct was in any way unreasonable. The aisle that she was walking in was open for customers. There was no forseeable danger to Olivares by her decision to shop in the aisle in which Leo was working. When she turned into the bean aisle Leo and his hand truck were less than nine inches away from her. It was also reasonable for her to assume and expect that Leo would handle his hand truck with due care particularly after she made her presence known by telling him to be careful. C-Town's argument is unavailing and does not raise a triable issue of fact regarding Olivares' comparative fault.
CONCLUSION
Plaintiff Noelia Olivares motion for an order pursuant to CPLR 3212 granting summary judgment in her favor on the issue of liability as against defendant Immortal Rise, Inc. d/b/a C-Town Supermarket is granted.
The foregoing constitutes the decision and order of this Court. Dated: April 21, 2017 Hon. Francois A. Rivera J.S.C.