Freyman v Duane Reade, Inc.

[*1] Freyman v Duane Reade, Inc. 2009 NY Slip Op 51426(U) [24 Misc 3d 1211(A)] Decided on July 2, 2009 Supreme Court, Kings County Hinds-Radix, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 2, 2009
Supreme Court, Kings County

Serge Freyman, Plaintiff(s),

against

Duane Reade, Inc., Defendant(s).



2802/08



Attorneys for Defendant

Chesney & Murphy, LLP

By: Joyce G. Bigelow

2305 Grand Avenue

Baldwin, NY 11510

Attorneys for Plaintiff

Burns & Harris, Esqs.

233 Broadway, Suite 900

New York, NY 10279

Sylvia O. Hinds-Radix, J.

Defendant Duane Reade, Inc., moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff Serge Freyman.

Facts and Procedural Background

Plaintiff commenced this action seeking to recover damages for injuries allegedly sustained to his eye on December 26, 2007 when he came into contact with a hook on a display rack in the Duane Reade store located at 16 Court Street in Brooklyn. In his bill of particulars, plaintiff claims that the accident occurred when he was injured by a defective, dangerous, hazardous and/or unsafe rotating display case and a hook protruding therefrom.

The Parties' Contentions

Defendant

In support of its motion, defendant argues that the evidence establishes that the display rack which plaintiff alleges caused his injury was open, obvious and not inherently dangerous, so that it had no duty to warn of the condition. Defendant further argues that although it established that there was no dangerous condition in the store, if it is concluded that there was, it did not have notice of said condition. In this regard, Eric [*2]Mendez, the store manager at the time of the accident, testified that there were no previous accidents and no complaints regarding the display prior to plaintiff's accident.

In arguing that the display rack is not unsafe, defendant relies upon the opinion of Robert L. Grunes, Ph.D., P.E., who examined the rack on November 8, 2008, took photographs and prepared schematic drawings; he inspected the display in the presence of Mendez, who submits an affidavit in which he alleges that the display that was in the store on that day was the same and was in the same location as it was on the day of plaintiff's accident. After measuring the size of the display and its distance from the column and walls that it is near, Grunes is of the opinion that the display rack was open and obvious, particularly since its size and multicolored cards draw a customer's attention to it. He is also of the opinion that there was ample room for customers to pass in the aisle adjacent to the display. Grunes further opines that the materials used to create the component parts of the display are suitable for their function; that the placement of the display was appropriate, since the hooks thereon did not extend beyond the column that was adjacent to it; that there is no geometric basis for the accident; that there are no applicable regulations governing the configuration of displays in retail businesses; and that he saw no defect or code violations with respect to the display as it was located or installed. His photographs and diagram are annexed to the moving papers.

Defendant also relies upon the deposition testimony of plaintiff to establish that he had been to the subject store before the accident more than five times, though he could not recall the number of times. After he made his purchase and was walking towards the door to exit, an L shaped, white hook approximately six to eight inches in length that was attached to a display rack made contact with his right eye. Plaintiff testified that he did not see the display rack, which had cards on it, before he came into contact with it. He did not remember if he ever saw the display when he was in the store before or if the rack to which the hook was attached swivelled. Plaintiff testified that he was 6'2" tall and that the hook that caused his injury was about at his eye level. He further testified that he never made any complaints to anyone at the store regarding any condition on the premises before his accident. Plaintiff identified photographs taken of the scene.

Defendant also relies upon the deposition testimony of Mendez, who described the store as having one entrance on Court Street and a second entrance on Montague Street. As one enters the store from Court Street, one would pass a pillar on the left. Gift cards are displayed on a rack on the side of the pillar, facing the cash registers; U shaped hooks hold gift cards and L shaped hooks hold price information. The aisle that runs from the Court Street entrance to the cash registers is wider as one passes the display rack as compared to when one passes the pillar. Mendez further testified that he was not a witness to the accident, but after he learned of the incident, he went to the area of the display rack and saw blood on one of the hooks. Mendez also alleged that no customer or employee ever came into contact with the display or complained about the rack prior to plaintiff's accident and that the display rack was checked everyday when it was cleaned.

[*3]Plaintiff

In opposition to the motion, plaintiff argues that as a threshold issue, the hook and display were set up by defendant, so that notice is not required because defendant created the alleged dangerous condition. He further avers that the issue of whether the hook that caused the injury was defective is an issue for the jury.

In support of his position, plaintiff relies upon an affidavit submitted by Desiree Rose, a woman who witnessed his accident. Therein, Rose alleges that she observed a hook that protruded from the display rack grab plaintiff's eye and cause it to bleed. She further alleges that the hook was sticking out from the display rack, it did not have any card or price tag on it and it was the same color as the background of the rack, making it difficult to see. She asked a store employee to get gauze, applied it to plaintiff's eye and telephoned 911 for an ambulance. After plaintiff left, she took pictures of the display rack and hook and later provided copies to him. Rose concludes that the hook that caused plaintiff's injury was dangerous and was "just waiting to catch someone."

Plaintiff also argues that defendant's reliance upon the deposition testimony of Mendez is insufficient to entitle it to summary judgment. In this regard, plaintiff contends that any information concerning the happening of the accident, as related by Mendez, is hearsay, since he did not witness the incident, nor did he go to display rack while plaintiff was still present. Rather, a clerk informed him of the incident while he was on the lower level of the store and he did not immediately go upstairs. Moreover, Mendez testified that he did not know if the display rack had been moved between the time the accident occurred and when he then saw it, he did not know how much time passed after the accident occurred until he went to the location and he did not remember if the photograph that he was shown was a fair and accurate depiction of the accident site. Mendez did testify, however, that he observed blood on a hook on the rack and that the display was first installed in the store in the summer of 2007; he did not know who placed the rack in its location or if the hooks on the rack could be moved. He further testified that he checked and cleaned the display every day and that a clerk would check it every other day.

Plaintiff further asserts that inasmuch as Grunes' opinion is based upon information supplied by Mendez, the expert's opinion is flawed and unpersuasive. Plaintiff also argues that the expert's conclusion that the display rack was in plain sight is not something that an expert should declare, but is instead an issue that should be determined by the jury.

Plaintiff also submits his own affidavit to support his contention that defendant owned, operated and maintained the store in which he was injured; that the display rack, with a hook sticking out into the aisle, was inherently dangerous; and that this caused his accident. More specifically, plaintiff alleges that at the time of the accident, he had just purchased an item at the register on the main floor and was walking towards the Court Street door to exit; there was no one walking toward him in the aisle. To his right, there [*4]was a display rack holding telephone and gift cards. He further alleges that the display rack had two hooks, i.e., U shaped hooks that held the cards and L shaped hooks that held price tags; the background of the display rack was the same color as the hooks; and both the U and L shaped hooks protruded from the display rack. As he was walking, one of the L shaped hooks, which did not have either a card or price tag on it, caught his eyelid and ripped it open. Plaintiff accordingly concludes that the hook was sticking out from the display rack without anything to draw a customer's attention to it. He also avers that the expert's statement that the accident did not occur is offensive, particularly since someone at the store had to mop up a great deal of blood; defendant did not, however, provide an affidavit from an employee who witnessed his accident or cleaned up the blood.

Defendant's Reply

In reply, defendant asserts that plaintiff misrepresents certain facts and the law and makes blanket statements that are not supported. More specifically, defendant argues that the deposition testimony of Mendez establishes that defendant did not construct or assemble the display rack, which was received with the hooks already on it. Defendant thus argues that this testimony compels the conclusion that defendant did not create the alleged dangerous condition. Defendant also argues that it established that it had no notice of this alleged dangerous condition, premised upon the testimony of Mendez that he received no complaints and no one was injured by the display prior to plaintiff's accident.

Further, defendant asserts that the affidavit of Grunes, based upon his inspection and observation of the display rack, along with the photographs that were taken, establish that the subject display rack and hook are not inherently dangerous as a matter of law and that the display does not violate any rule, regulation or code. Defendant further points out that plaintiff offers no expert opinion of his own to refute these conclusions. In this regard, defendant contends that the opinion of Rose, as an eyewitness who is not qualified as an expert, is insufficient to establish that the display rack or the hook were dangerous. Plaintiff also argues that inasmuch as plaintiff testified at his deposition that he did not see the display rack or hook that caused his injury before his eye made contact with it, his allegation in his affidavit that the hook had neither a card or price tag on it should be disregarded by the court.

Plaintiff also contends that Grunes' opinion is properly offered and admissible in that it is based upon his personal inspection of the site, his review of the papers filed in the action, the photographs exchanged and the deposition testimony. Accordingly, plaintiff's attempts to discredit Grunes should not succeed, particularly since Grunes bases his opinion, in large part, upon plaintiff's own pleadings and sworn statements. Defendant further avers that although Mendez did not go to the accident site while plaintiff was present, he observed the display rack while there was still blood on it. In addition, defendant notes that the assistant manager who assisted plaintiff on the day of [*5]the accident is no longer employed by Duane Reade and that plaintiff made no attempt to obtain a deposition from this non-party witness.In addition, defendant assets that Grunes does not state that the subject accident did not happen, as argued by plaintiff. Instead, Grunes opines that there is no geometric explanation for the accident, since plaintiff is 6'2" tall, the display rack is 66.5" high, the hook that caught plaintiff's eye is 65.5" from the floor, none of the hooks extend past the adjacent column and the display rack was 49.5" from the stairs leading to the Montague Street door and 38 inches from the wall to the left of the column. Also significant is the fact that neither Rose nor Mendez dispute the location of the display rack.

The Law

It is well established that summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The party moving for summary judgment "bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law" (Holtz v Niagara Mohawk Power, 147 AD2d 857, 858 [1989]). Once such a showing has been established, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 324, citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Mere conclusory allegations, unsubstantiated assertions, or speculation may not defeat a motion for summary judgment (see e.g. DePodwin & Murphy v Fonvil, 38 AD3d 827, 827 [2007]; Carleton Studio v MONY Life Ins. Co., 18 AD3d 491, 492 [2005]). On such a motion, the court is not to determine credibility, but whether a factual issue exists (Capelin Assoc. v Globe Mfg., 34 NY2d 338 [1973]).

It is equally well established that a property owner " must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk'" (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [1972], cert denied 412 US 939 [1973]; see also Fernandez v Edlund, 31 AD3d 601, 602 [2006]; Capozzi v Huhne, 14 AD3d 474 [2005]). "This duty applies with equal force to landowners and tenants who operate places of public assembly . . . and requires them to provide members of the public with reasonably safe premises, including safe means of ingress and egress" (Branham v Loews Orpheum Cinemas, 31 AD3d 319, 322 [2006], affd 8 NY3d 931 [2007], citing Peralta v Henriquez, 100 NY2d 139, 143-144 [2003]; Gallagher v St. Raymond's R.C. Church, 21 NY2d 554, 557 [1968]; see generally Kipybida v Good Samaritan Hosp., 35 AD3d 544 [2006]; Demshick v Community Hous. Mgt., 34 AD3d 518, 519 [2006]). Further, "[a]s a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property'" (Welwood v Association for Children with Down Syndrome, 248 AD2d 707, 708 [1998], [*6]quoting Millman v Citibank, 216 AD2d 278 [1995]).In order to establish a prima facie entitlement to judgment as a matter of law in a premises liability case, a defendant must demonstrate that it did not create the alleged defect or have actual or constructive notice of it (see e.g. Gershfeld v Marine Park Funeral Home, ___ AD3d ___, 2009 NY Slip Op 4026, 2 [2009] [citations omitted]). In this regard:

" To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it' (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986])."

(DeGruccio v 863 Jericho Tpk., 1 AD3d 472, 473 [2003]). There is no duty, however to protect or warn against an open and obvious condition, which, as a matter of law, is not inherently dangerous (see e.g. Terranova v Staten Is. Univ. Hosp., 57 AD3d 765, 766 [2008], citing Fitzgerald v Sears, Roebuck & Co., 17 AD3d 522 [2005]; Orlando v Audax Constr., 14 AD3d 500 [2005]; Capozzi, 14 AD3d 474; Jang Hee Lee v Sung Whun Oh, 3 AD3d 473 [2004]; Cupo v Karfunkel, 1 AD3d 48 [2003]).

As is also of particular relevance herein, numerous cases have held that display racks, clothing racks, hooks, etc., are open and obvious and not inherently dangerous, so that a defendant is entitled to summary judgment dismissing the complaint if a person sustains injury by coming into contact with the object. In fact, in a case decided on facts closely analogous to those now before the court, it was held that the trial court should have granted defendant's motion for summary judgment under circumstances where plaintiff allegedly sustained injuries when he struck his head in one of defendant's stores on a four-inch hook, located inside a dressing room, about 6 feet off of the ground, holding that defendant had no duty to warn against a condition that was readily observable by those employing the reasonable use of their senses and that the presence of the hook on the dressing room wall was not an inherently dangerous condition (Binensztok v Marshall Stores, 228 AD2d 534, 535 [1996]). In another similar case, the court held that defendant should have been granted summary judgment dismissing the complaint where the condition of which plaintiff complained, a metal bracket on a clothing rack in defendant's store, was open and obvious and not inherently dangerous (Schulman v Old Navy/Gap, 45 AD3d 475 [2007]). It has also been held thatdefendant's motion for summary judgment dismissing the complaint should have been granted where defendant established, prima facie, its entitlement to judgment as a matter of law by demonstrating that the display racks with which the plaintiff's shopping cart collided were open and obvious, known to her, and not inherently dangerous (Morgan v TJX Cos., 38 AD3d 508 [2007]; see also Gagliardi v Walmart Stores, 52 AD3d 777 [2008] [defendant submitted evidence sufficient to establish its entitlement to judgment as a matter of law by demonstrating that a box containing an unassembled chest of dresser drawers that allegedly caused plaintiff's injuries, which was placed in the aisle of its store, was open [*7]and obvious, not inherently dangerous, and not a proximate cause of the accident]; Mareno v Shorenstein Realty Servs., 44 AD3d 911 [2007] [the court properly granted defendants' motion for summary judgment dismissing the complaint insofar as asserted against them, as they established that the wall-mounted tampon dispenser upon which plaintiff struck her head was open and obvious and not inherently dangerous as a matter of law]; Kaufmann v Lerner, 41 AD3d 660 [2007] [where plaintiff tripped over a clothing rack in defendants' store while attempting to step over its base, defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the placement of a rolling clothing rack inside of a dressing room area corridor was not inherently dangerous and that the plaintiff had observed the clothing rack before her accident]; Mastellone v City of New York, 29 AD3d 540 [2006] [defendant established its prima facie entitlement to summary judgment dismissing the complaint by submitting evidence demonstrating that the coat rack upon which allegedly tripped and fell was an open and obvious condition and was not inherently dangerous]; Casamassa v Waldbaum's, 276 AD2d 659, 660 [2000] [defendant demonstrated its prima facie entitlement to summary judgment by showing that the rack on which plaintiff caught her foot, which was positioned against a wall adjacent to a cashier's lane in defendant supermarket, was readily observable by the reasonable use of one's senses and, therefore, defendant had no duty to warn plaintiff of the allegedly dangerous condition]; Chiranky v Marshalls, 273 AD2d 266 [2000] [the court correctly granted defendant summary judgment as a matter of law where the mobile clothes rack located in an aisle in the defendant's department store that allegedly caused plaintiff to trip was not an inherently dangerous condition and the rack was readily observable by the reasonable use of one's senses, so that defendant had no duty to warn the injured plaintiff of the condition]).

Discussion

Herein, defendant does not deny that it had possession and control of the store in which plaintiff was injured (see generally Smalls v New York City Hous. Auth. Tenants Assn., 276 AD2d 619, 620 [2000]; Sullivan v Specialty Glass, 229 AD2d 572 [1996], lv dismissed 92 NY2d 869 [1994]). Similarly, defendant's assertion that it did not have notice of the alleged dangerous condition is disingenuous in view of the fact that defendant stocked the display with cards and inspected it on a regular basis.

Nonetheless, defendant is entitled to summary judgment as a matter of law, premised upon the parties' deposition testimony and the photographs submitted, since the above discussed case law establishes that a display rack is an open and obvious condition, so that defendant did not have a duty to warn or to protect plaintiff against it (see e.g. Gagliardi, 52 AD3d 777; Schulman, 45 AD3d 475; Mareno, 44 AD3d 911; Kaufmann, 41 AD3d 660; Morgan, 38 AD3d 508; Mastellone, 29 AD3d 540; Casamassa, 276 AD2d 659; Chiranky, 273 AD2d 266; Binensztok, 228 AD2d 534).

Conclusion

Accordingly, defendant's motion for summary judgment is granted and the [*8]complaint is dismissed.

The foregoing constitute the order, decision and judgment of this court.

E N T E R

J. S. C.

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