Kesewaa v Key Food Supermarket

[*1] Kesewaa v Key Food Supermarket 2006 NY Slip Op 52453(U) [14 Misc 3d 1208(A)] Decided on August 16, 2006 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2006
Supreme Court, Bronx County

Mercy Kesewaa, Plaintiff

against

Key Food Supermarket and Bruckner Plaza Associates LP, Defendants.



20169/2004



For Plaintiffs

Patrick Daniel Gatti Esq.

Segal & Lax

501 5th Avenue, New York, NY 10017

For Defendant Key Food Supermarket

Jill Zibkow Esq.

Armienti, DeBellis & Whiten, LLP

44 Wall Street, New York, NY 10005

Lucy Billings, J.

Plaintiff sues to recover for personal injuries sustained September 21, 2003, while on premises occupied by defendant Key Food Supermarket and owned by defendant Bruckner Plaza Associates LP. Plaintiff moves for summary judgment on defendant Key Food Supermarket's negligence. C.P.L.R. § 3212(b) and (e). For the reasons explained below, the court grants plaintiff's motion.Plaintiff claims the undisputed evidence, that wheeled shopping carts stored on top of a freezer case struck her as she was retrieving frozen vegetables, demonstrates her entitlement to summary judgment based on res ipsa loquitur, a rule of evidence permitting the factfinder to infer that an extraordinary occurrence resulted from defendant's negligence. Morejon v. Rais Constr. Co., 7 NY3d 203, 209 (2006); States v. Lourdes Hosp., 100 NY2d 208, 211 (2003); Mejia v. New York City Tr. Auth., 291 AD2d 225, 227 (1st Dep't 2002); Rountree v. Manhattan & Bronx Surface Tr. Operating Auth., 261 AD2d 324, 326 (1st Dep't 1999). The factfinder, based on common experience, may infer defendant's negligence "from the happening of an event" and "defendant's relation to it." Kambat v. St. Francis Hosp., 89 NY2d 489, 494-95 (1997). See Rountree v. Manhattan & Bronx Surface Tr. Operating Auth., 261 AD2d at 326; Dawson v. National Amusements, 259 AD2d 329, 330 (1st Dep't 1999); Pavon v. Rudin, 254 AD2d 143, 144-45 (1st Dep't 1998). The elements necessary to application of this rule are that (1) the event "ordinarily does not occur" absent negligence; (2) the cause was "an agency or instrumentality" in defendant's exclusive control; and (3) plaintiff did not voluntarily cause or contribute to the event. Morejon v. Rais Constr. Co., 7 NY3d at 209; Dawson v. National Amusements, 259 AD2d at 330. See States v. Lourdes Hosp., 100 NY2d at 211-12; Kambat v. St. Francis Hosp., 89 NY2d at 494; Mejia v. New York City Tr. Auth., 291 AD2d at 227; [*2]Ardolaj v. Two Broadway Land Co., 276 AD2d 264, 265 (1st Dep't 2000).

Shopping carts do not fall from the top of a freezer case from which shoppers are to retrieve merchandise absent negligence. Ruggiero v. Waldbaums Supermarkets, 242 AD2d 268, 269 (2d Dep't 1997); Bonventre v. Max, 229 AD2d 557, 558 (2d Dep't 1996). See Mejia v. New York City Tr. Auth., 291 AD2d at 227. The fact that plaintiff opened the freezer case door does not, without more, show that she contributed to her injury. Lukasinski v. First New Amsterdam Realty, 3 AD3d 302, 303 (1st Dep't 2004); Pavon v. Rudin, 254 AD2d at 145. The testimony of Angelo Holmes, defendant's assistant manager, however, that the freezer case was only six feet high, and customers could open the freezer case door and step up on the ledge of the freezer to reach the shopping carts, demonstrates the carts were not in defendant's exclusive control. Cohen v. Interlaken Owners, 275 AD2d 235, 237 (1st Dep't 2000); Ruggiero v. Waldbaums Supermarkets, 242 AD2d at 269; Meegan v. Westbury Prop. Inv. Co., 234 AD2d 433 (2d Dep't 1996). See Bonventre v. Max, 229 AD2d at 558. Therefore this motion is not the rare or exceptional instance when res ipsa loquitur dictates summary judgment in plaintiff's favor. Morejon v. Rais Constr. Co., 7 NY3d at 207, 212.

Despite the inapplicability of res ipsa loquitur, plaintiff nonetheless has established defendant's negligence as a matter of law. An occupier of premises is liable for defective conditions on the premises if it created the defective condition or had actual or constructive notice of the defect. Uhlich v. Canada Dry Bottling Co. of NY, 305 AD2d 107 (1st Dep't 2003); Silverman v. Blenheim Assoc. Realty Corp., 291 AD2d 214, 215 (1st Dep't 2002); Caldwell v. Pathmark Stores, Inc., 29 AD3d 847 (2d Dep't 2006); Marusevich v. Great Atl. & Pac. Tea Co., 309 AD2d 839, 840 (2d Dep't 2003). Injuries caused by unsafely stored merchandise thus may constitute negligence for which defendant is liable if it created or had notice of the way the merchandise was stored. Pakkou v. Pergament Home Ctr., 269 AD2d 120 (1st Dep't 2000); Fields v. King Kullen Grocery Co., 28 AD3d 513, 514 (2d Dep't 2006); Howe v. Golub Corp., 240 AD2d 982, 983 (3d Dep't 1997). See Rosado v. Home Depot, 4 AD3d 204, 205 (1st Dep't 2004); Ruggiero v. Waldbaums Supermarkets, 242 AD2d at 269.

While Holmes's testimony that the shopping carts had never previously fallen, and he had never received complaints about how the carts were stored, establishes defendant's lack of notice of such prior instances, Ramos v. HSBC Bank, 29 AD3d 435, 436 (1st Dep't 2006); Rouse v. Lex Real Assoc., 16 AD3d 273 (1st Dep't 2005); Campanella v. Marstan Pizza Corp., 280 AD2d 418 (1st Dep't 2001), the absence of that notice is irrelevant where defendant created and hence knew of the defective condition. Van Valkenburgh v. Philip Morris Cos., 304 AD2d 382, 383 (1st Dep't 2003); Figueroa v. Lazarus Burman Assocs., 269 AD2d 215, 217 (1st Dep't 2000); Ohanessian v. Chase Manhattan Realty Leasing Corp., 193 AD2d 567 (1st Dep't 1993). Here, Holmes further testified that defendant's employees stored the shopping carts for display atop the freezer case, and the carts were chained together to secure them against theft and prevent them from rolling off. Although Holmes did not explain how the two carts that fell on plaintiff became unchained, only he, the other assistant managers, and the store manager possessed keys for the chain's lock. Thus defendant fails to rebut plaintiff's showing that defendant's method of storing the shopping carts created a dangerous condition. Pakkou v. Pergament Home Ctr., 269 AD2d at 120; Howe v. Golub Corp., 240 AD2d at 983. For these reasons, the court grants plaintiff's motion for summary judgment on defendant Key Food Supermarket's liability. C.P.L.R. § 3212(b) and (e).

DATED: August 16, 2006

_____________________________

LUCY BILLINGS, J.S.C.