Abdelmessih v Costco Wholesale

[*1] Abdelmessih v Costco Wholesale 2010 NY Slip Op 51155(U) [28 Misc 3d 1205(A)] Decided on July 2, 2010 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2010
Supreme Court, Richmond County

Michael Abdelmessih, Plaintiff,

against

Costco Wholesale, Defendant.



102314/08

Philip G. Minardo, J.

Defendant COSTCO WHOLESALE moves for summary judgment dismissing the complaint pursuant to CPLR § 3212.

Plaintiff MICHAEL ABDELMESSIH commenced this action to recover damages for injuries sustained as a result of an accident that occurred on May 9, 2007 on the premises of the defendant COSTCO WHOLESALE. Plaintiff contends that as he removed a drill case from a pallet, multiple drill cases fell, one of which struck plaintiff's foot causing injuries. Plaintiff MICHAEL ABDELMESSIH argues both that the drill cases were stacked too high and that they were stacked in an unsafe manner.

As a result of the incident, plaintiff allegedly sustained, inter alia, trigonum of the right foot, partial intrasubstance meniscal tear involving the posterior horn of the medial meniscus of the left knee, and suprapatella effusion extending into the joint space of the left knee. He also claims that the foregoing injuries directly affected the bones, tendons, tissues, muscles, ligaments, nerves, blood vessels and soft tissues in and about the involved areas and sympathetic and radiating pains. Plaintiff also claims that all of the above injuries, with the exception of contusions, are permanent.

In moving for summary judgment, defendant COSTCO WHOLESALE contends that the plaintiff has not established the existence of a dangerous or unsafe condition that caused the accident and/or if there was a dangerous or unsafe condition that defendant COSTCO WHOLESALE had no notice of such a condition nor did the defendant have an opportunity to correct it. Further, defendant contends that it did not have exclusive control over an alleged unsafe condition because the defendant's employees do not stack the drill cases. Defendant points to the testimony of COSTCO WHOLESALE employee Joanne Marachilian, who testified that the cases arrive at the store already stacked and the defendant simply places the entire stack atop a wooden pallet. With regard to prior notice of the condition, the defendant argues that no COSTCO WHOLESALE employees were in the aisle with the plaintiff at the time of the accident. Moreover, defendant COSTCO WHOLESALE submits the "Costco Wholesale Floorwalk Checklist" (Exhibit K), which outlines hourly inspections of the areas of the store as well as a photograph of the drill cases, which does not reveal an unsafe or dangerous condition. In sum, it is defendant's contention that it did not create an unsafe or dangerous condition. If such a condition existed, it is defendant's contention that it did not have any actual or

constructive notice of it.

In opposition, plaintiff MICHAEL ABDELMESSIH, testified at his examination before trial that an unknown COSTCO WHOLESALE employee who came to the scene told him that [*2]the drill boxes fell because one of the cases on the bottom was stacked incorrectly. However, defendant argues that the foregoing is inadmissible hearsay because said unknown employee has not himself testified, nor did this unknown COSTCO WHOLESALE employee have authority of his or her employer to make such a statement.

It is well settled that landowners owe patrons the "duty of reasonable care under the circumstances to maintain their property in a safe condition." (See Maheshwari v. City of New York, et al., 2 NY3d 288, 294 [2004]). Where there is not enough evidence to prove that a store created a dangerous condition, the plaintiff must prove that the defendant had actual or constructive notice of the condition. (Ruggiero v. Waldbaums Supermarkets, 242 AD2d 268 [2d Dep't 1997] (granting summary judgment to defendant supermarket when plaintiff customer could not prove that display of juice cans was stacked "lopsided"). Summary judgment may be granted where there is no direct evidence that the defendant created a condition and no sufficient circumstantial evidence to infer that the defendant otherwise had actual or constructive notice of a hazardous condition. (Rosado v. Home Depot, 4 AD2d 268 [2d Dep't 1997]). General awareness that conditions may sometimes arise is insufficient to impute constructive notice on the defendant. (Berzon v. D'Agostino Supermarkets, Inc., 15 AD3d 600 [2d Dep't 2005];Perlongo v. Park City 3 & 4 Apts., Inc., 2006 NY Slip Op 5342 [2d Dep't 2006]).

An employee must have the authority to speak on behalf of his employer in order for an alleged statement to be binding on the employer. (Tyrrell v. Wal-Mart Stores, Inc., 97 NY2d 650 [2001]). An employee has the authority to speak on behalf of his employer if the employee made the statement within the scope of the agent's authority, and the statement is made in the course of business or transaction for which the agent is employed. (Candela v. City of New York, 8 AD3d 45 [1st Dep't 2004]). Plaintiff's contentions that an unidentified employee made statements about an alleged condition are insufficient to raise a triable issue of fact. (Oddo v. Edo Mar. Air, 34 AD3d 774 [2d Dep't 2006]). "Pursuant to this rule, the hearsay statement of

an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority (Loschiavo v. Port Auth. of NY & N.J., 58 NY2d 1040, 1041 [1983] citing Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 8 [1974]; Spett v. President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 206 [1967]).

Here, defendant COSTCO WHOLESALE is a large service store whose items are generally accessible to the public. The defendant indicates that store items come from the manufacturer already stacked and atop the wooden pallet. While the EBT testimony of the plaintiff indicates that a drill case on the bottom of the stack was pushed farther back than the rest of the cases, there is no evidence that defendant COSTCO WHOLESALE had actual or constructive notice that a drill box was improperly stacked. COSTCO WHOLESALE employee Joanne Marachilian testified that employees perform hourly checks of the entire store, which are then marked on the "Costco Wholesale Floorwalk Checklist." The checklist reveals that inspections of the aisle containing drill cases were performed at every hour on May 9, 2007, and

no unsafe or dangerous conditions were noted. Similarly, in her EBT testimony, Joanne Marachilian indicated that she took a photograph of the stack of drill cases at the time of the accident. The photograph taken at the time of the accident does not reveal that the drill cases were stacked in an unsafe manner. Ms. Marachilian also testifies that no other COSTCO WHOLESALE employees restacked or moved the drills depicted in the photograph. Moreover, plaintiff's statement that the unknown COSTCO WHOLESALE employee said that the cases fell onto the plaintiff because they [*3]were improperly stacked is inadmissible because it is hearsay and was made without the authority of the employer.

Accordingly, since the defendant COSTCO WHOLESALE has met its initial burden of showing lack of negligence and the plaintiff has failed to raise an issue of fact as to whether defendant created the condition or had actual or constructive notice of an unsafe or dangerous condition, the defendant's motion for summary judgment is granted and the complaint is dismissed.

This shall constitute the decision and order of the court.

ENTER

Dated: July 2, 2010 s/ Philip G. Minardo

J.S.C