Opinion
No. 3516/10.
2012-05-24
Madeline SPENCER, Plaintiff, v. The STOP & SHOP SUPERMARKET COMPANY, LLC, Defendant.
Steven M. Melley, Esq., Melley Platania, PLLC, Rhinebeck, Attorneys for Plaintiff. Jonathan O. Gill, Esq., Creedon & Gill, P.C., Northport, Attorneys for Defendant.
Steven M. Melley, Esq., Melley Platania, PLLC, Rhinebeck, Attorneys for Plaintiff. Jonathan O. Gill, Esq., Creedon & Gill, P.C., Northport, Attorneys for Defendant.
JAMES D. PAGONES, J.
Defendant The Stop & Shop Supermarket Company, LLC moves for an order pursuant to CPLR R3212 granting summary judgment dismissing the plaintiff's complaint in its entirety. The plaintiff opposes the instant application. For the reasons stated more fully herein, it is ordered that the defendant's motion is denied.
This action for personal injury arises out of an alleged trip and fall that occurred on January 20, 2010 at approximately 9:45 a.m. at the defendant's place of business located at 6734 Route 9, Rhinebeck, New York. The plaintiff asserts she was injured when her foot became entangled in plastic shrink wrap left on the floor by an employee of the defendant. According to the plaintiff, she noticed the plastic on the aisle floor below the coffee shelves from approximately five or six feet away and observed that the plastic protruded between one and two feet into the center of the aisle. The plaintiff testified that although she had to reach over the plastic in order to pick up the coffee, at no point did she step on any of the plastic. After retrieving her coffee, the plaintiff contends she began to walk towards the back of the store when the plastic “caught” her shoe and ankle, causing the plaintiff to fall and injure herself.
John Betti, a customer service manager for the defendant, testified the plastic shrink wrap that allegedly caused the plaintiff to fall had been left on the aisle floor by one of the defendant's employees after restocking coffee products. Mr. Better further testified that the defendant's stocking procedure requires that all trash, including wrappings, plastic shrink wrap and boxes, be removed from the area before the employee leaves. It was conceded by Mr. Betti that the presence of debris on the floor, without a sign, cones or any type of warning device, constitutes a failure of maintenance.
The defendant asserts entitlement to summary judgment based on its contention that the plastic shrink wrap was an open and obvious condition and was not inherently dangerous.
In order “to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b] ), and he or she must do so by tender of evidentiary proof in admissible form.” (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 A.D.2d 543 [2d Dept.1983] aff'd62 N.Y.2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980].)
Here, the defendant failed to establish, prima facie, that the alleged condition that caused the plaintiff to trip and fall was open and obvious and not inherently dangerous. “A store owner is charged with the duty of maintaining its premises in a reasonably safe condition for its patrons.” (Robinson v. 206–16 Hollis Ave. Food Corp., 82 AD3d 735 [2nd Dept.2011].) In this matter, the defendant's employee acknowledged that the presence of plastic shrink wrap and debris on the floor of an aisle, which remained as a result of employee failure, constituted a failure in maintenance. The defendant's reliance on its assertion that the plastic shrink wrap was open and obvious is unavailing. Evidence that a dangerous condition is open and obvious only negates the defendant's obligation to warn of the condition and may be relevant to the issue of the plaintiff's comparative negligence, but does not preclude a finding of liability against the landowner for failure to maintain the property in a safe condition. ( Gradwohl v. Stop & Shop Supermarket Co., LLC, 70 AD4d 634 [2nd Dept.2010].)
Viewing the evidence submitted in support of the defendant's summary judgment motion in the light most favorable to the plaintiff, the defendant failed to establish as a matter of law that it maintained the premises in a reasonably safe condition. ( Id. at 636–637). Since the defendant did not meet its initial burden as the movant, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. (Katz v. Westchester County Healthcare Corp., 82 AD3d 712 [2nd Dept.2011].) Therefore, it is ordered that the defendant's motion for summary judgment is denied.
The Court read and considered the following documents upon this application:
+-----------------------------------------------------------------------------+ ¦PAGES NUMBERED ¦ +-----------------------------------------------------------------------------¦ ¦1.Notice of Motion ¦ ¦1 ¦ +----------------------------------------------------+-------------------+----¦ ¦ ¦Affirmation–Creedon¦1–9 ¦ +----------------------------------------------------+-------------------+----¦ ¦ ¦Exhibits ¦A–H ¦ +----------------------------------------------------+-------------------+----¦ ¦2.Combined Affirmation in Opposition–Melley & ¦ ¦1–19¦ ¦Memorandum of Law ¦ ¦ ¦ +----------------------------------------------------+-------------------+----¦ ¦ ¦Exhibits ¦A–D ¦ +-----------------------------------------------------------------------------+
The foregoing constitutes the decision and order of the Court.