Balducci v Inserra Supermarkets, Inc.
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Balducci v Inserra Supermarkets, Inc. 2017 NY Slip Op 33509(U) August 22, 2017 Supreme Court, Rockland County Docket Number: Index No. 034445/2015 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 034445/2015 FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:29 PM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/23/2017 SUPREME NEW YORK YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW COUNTY ROCKLAND COUNTY OF ROCKLAND ------------------------------------------------------------------------x ------------------------------------------------------------------------)( JOSEPH PHILOMENA BALDUCCI, BALDUCCI, JOSEPH BALDUCCI BALDUCCI and PHILOMENA Plaintiff Plaintiff DECISION & ORDER ORDER DECISION Inde)( Index No. 034445/2015 034445/2015 -against-againstINSERRA SUPERMARKETS, INC., SHOP-RITE INSERRA SUPERMARKETS, INC., SHOP-RITE SUPERMARKETS, TALLMAN SUPERMARKETS, INC., INC., SHOP-RITE SHOP-RITE OF TALLMAN and WAKEFERN FOOD CORP., CORP., WAKEFERN FOOD Defendant Defendant ------------------------------------------------------------------------x ------------------------------------------------------------------------)( Hon. Thomas Walsh II, J.S.C. Thomas E. Walsh J.S.c. The following following papers papers numbered numbered 1- 3 read read on this this motion motion by Defendant Defendant for an Order Order pursuant to Civil Practice Law Lmv and and Rules Rules §9 3212 3212 granting granting summary summary judgment judgment and and dismissing dismissing pursuant Civil Practice Plaintiff complaint and cross-claims against Plaintiffss complaint and all cross-claims against Defendants Defendants and for such such other other and further further relief relief as this Court Court deems just, proper proper and equitable: equitable: deems just, NUMBERED NUMBERED PAPERS PAPERS Notice of Motion/Affirmation of James Notice of Motion/ Affirmation of James C. Miller, Miller, Esq.lAffidavit Esq./ Affidavit of of Richard Richard Chamberlain/E)(hibits (A-J) (A-J) Chamberlain/Exhibits 1 Affirmation of Scott Scott D. Frendel, Frendel, Esq.lE)(hibits Esq./Exhibits (1-2) Affirmation of 2 of James Reply Affirmation Affirmation of James C. Miller, Miller, Esq. 3 action is a suit This action suit to recover recover damages damages for personal personal injuries injuries sustained sustained by the Plaintiff Plaintiff while shopping on February 16,2013 Shoprite of while he was shopping February 16, 2013 at the Shoprite of Tallman Tallman located located in Tallman, Tallman, New New Defendant and Plaintiff Plaintiff agree agree when when plaintiff plaintiff stepped stepped between smoked meat meat case case and a York. Defendant between the the smoked U-Boat an employee employee of of Defendant Defendant was was using using to stock stock meats meats in the the smoked smoked meat meat case. case. U-Boat Defendant submits submits that that Plaintiff Plaintiff has has made made three three (3) separate separate statements statements. after after the accident Defendant the accident which differ differ in identifying identifying the the cause cause of of Plaintiffs Plaintiffs fall. Specifically, Specifically, Defendant Defendant avers avers that that a which Plaintiff that that cannot cannot identify identify the the cause cause of of their their fall or injuries injuries cannot cannot sustain sustain an action action for Plaintiff negligence. The The second second argument argument raised raised by Defendant Defendant in support support of of their their application application for negligence. [* 1] 1 of 4 FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:29 PM NYSCEF DOC. NO. 35 INDEX NO. 034445/2015 RECEIVED NYSCEF: 08/23/2017 Summary property owner have a duty warn or protect protect Plaintiff Summary Judgment Judgment is that that a property owner does not have duty to warn Plaintiff against As such, against open and obvious obvious conditions conditions that that are not inherently inherently dangerous. dangerous. As such, Defendant Defe~dant argues that the U-Boat obvious and not not inherently V-Boat cart cart in the aisle aisle was open and obvious inherently dangerous. dangerous. A third third argument raised by Defendant Affidavit cif argument raised Defendant through through the Affidavit of Richard Richard Chamberlain, Chamberlain, the Inserra, is that that the only proper proper Defendant Corporate Corporate Financial Financial Officer Officer of of Inserra, Defendant is Inserra Inserra Supermarkets. Supermarkets. Richard Chamberlain Affirmation that that no such corporation Richard Chamberlain asserts asserts in his Affirmation corporation Shop-Rite Shop-Rite of of Tallman Tallman or Shop-Rite Supermarket, Defendant is seeking against Shop-Rite Supermarket, Inc. exists. exists. As such, Defendant seeking to have have the action action against Shop-Rite of of Tallman Tallman and Shop-Rite Shop-Rite Supermarket, Supermarket, Inc. dismissed. dismissed. Shop-Rite opposition Plaintiff Plaintiff submits submits that that he has not wavered as to the cause cause of of his fall. In opposition not wavered Specifically, that the fall was was caused Specifically, Plaintiff Plaintiff avers avers that that he has always always asserted asserted that caused by the Defendant's which struck Plaintiff's leg. Plaintiff Defendant's employee employee when when he moved moved the U-Boat, V-Boat, which struck Plaintiffs Plaintiff asserts asserts that the documents Defendant in support their argument argument that failed documents submitted submitted by Defendant support of of their that Plaintiff Plaintiff has failed were not created that are to state a cause cause of of action action were created by Plaintiff Plaintiff and. as such such contain contain statements statements that attributed him that support of attributed to him that he did not state. In support of their their opposition opposition Plaintiff Plaintiff direct direct the Court's Court's attention to Plaintiff's Plaintiffs Examination (hereinafter EBT) EBT) testimony testimony in which attention Examination Before Before Trial (hereinafter which Plaintiff Plaintiff unequivocally states states that V-Boat on the back of his leg right right before Further, before he fell. Further, unequivocally that he felt the U-Boat back of Plaintiff submits Plaintiff submits that that the documentary documentary evidence evidence annexed annexed to Defendant's Defendant's Motion Motion for Summary Summary Judgment are both admissible evidence evidence upon which the Judgment both verified/certified verified/certified and as such are not admissible upon which Court can rely. Court Plaintiff also opposes opposes Defendant's argument that that the V-Boats were an open open and obvious obvious Plaintiff Defendant's argument U-Boats were condition that were not inherently inherently dangerous, dangerous, stating stating that considering whether condition is condition that were that in considering whether a condition obvious the totality totality of of circumstances/surroundings circumstances/surroundings should should be considered considered on a case by open and obvious basis .. case basis.· Affidavit of of Richard Richard Chamberlain, Chamberlain, Plaintiff Plaintiff states states that that the the affidavit affidavit does does not As to the Affidavit address any of of the arguments arguments raised raised by Defendant Defendant and should should not not be considered considered as part of the the address part of Defendant's Motion Motion for Summary Summary Judgment. Judgment. In Reply, Reply, Defendant's Defendant's clarify clarify that that the the sole sole purpose purpose Defendant's of the Chamberlain Chamberlain Affidavit Affidavit was to support support the relief relief sought sought in dismissing dismissing the improperly improperly of named Defendants Defendants Shop-Rite Shop-Rite Supermarkets, Supermarkets, Inc. and Shop Shop Rite Rite of of Tallman. Tallman. Plaintiff Plaintiff fails to named object to the argument argument raised raised in the Chamberlain Chamberlain Affidavit Affidavit or argue argue that that Shop-Rite Shop-Rite of of Tallman Tallman or object Shop-Rite Supermarkets, Supermarkets, Inc. are proper Defendants. Shop-Rite proper Defendants. [* 2] 2 of 4 FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:29 PM NYSCEF DOC. NO. 35 INDEX NO. 034445/2015 RECEIVED NYSCEF: 08/23/2017 of a summary summary judgment motion must must make make a prima showing of of The proponent proponent of judgment motion prima facie showing entitlement to judgment matter of of law, by tendering tendering sufficient sufficient evidence evidence to eliminate eliminate any entitlement judgment as a matter material issues issues of of fact from from the case and to warrant warrant a court court to direct direct judgment favor, as a judgment in its favor, material matter oflaw. oflaw. [Civil Practice and Rules 3212(b); Giuffrida Giuffrida v. v. Citibank Citibank Corp., Corp.! et al, ai, 100 Practice Law Law and Rules§~ 3212(b); matter NY2d (2003), citing citing Alvarez v. Prospect (1986); Zuckerman v. City Citvofof Alvarez v. Prospect Hosp., Hosp .. 68 NY2d NY2d 320 (1986); Zuckerman v. NY2d 72 (2003), New York, 49 NY2d (1980)]. Failure Failure to make make such such showing showing requires requires denial denial of of the motion, motion, New York. NY2d 557 (1980)]. regardless of of the sufficiency sufficiency of of the opposing opposing papers. [Winegrad v. New York University University Medical papers. [Wine grad v. New York Medical regardless Center, 64 N.Y. 2d 851 (1985)]. (1985)). Center. Once a moving moving party made a prima showing of of its entitlement entitlement to summary summary Once party has made prima facie showing judgment, shifts to the opposing opposing party evidentiary proof admissible form proof in admissible judgment, the burden burden shifts party to produce produce evidentiary sufficient to establish establish the existence existence of of material material issues issues of of fact which which require require a trial trialofof the the action. action. sufficient v. Prospe.ct (1986); Gonzalez Gonzalez v. v. 98 Maq Corp..., 95 NY2d Prospe_ct Hosp., Hosp., 68 NY2d NY2d 320 (1986); Maq Leasing Leasing Corp NY2d [Alvarez v. (2000), citing citing Alvarez, supra; Wine Winegrad v. New University Med. Center. Center, 64 NY2d New York University NY2d 851 124 (2000), Alvarez. supra; grad v. (1985)]. The opponent opponent must must assemble, assemble, lay bare reveal his proofs, order to show show that that the (1985)]. bare and reveal proofs, in order matters set up in his complaint complaint are real and are capable capable of of being established upon trial. [[Di being established upon a trial. Di matters Sabato v. v. So(fes, So(fes, 9 AD2d AD2d 297 297 (1st (1st Dept Dept 1959)]. Sabata Summary judgment will be granted granted only only if if there there is no triable triable issue issue of of fact, issue issue finding, finding, Summary judgment will rather than than issue issue determination, determination, is the key to summary summary judgment, and the papers motion rather judgment, and papers on the motion should be scrutinized scrutinized carefully carefully in the light light most most favorable favorable to the party opposing the the relief. relief. should party opposing v.DeAngelo, 272 AD2d AD2d 583 (2dDept (2dDept 2000)]. 2000)]. [Judice v.DeAngelo, Defendants have have failed failed to demonstrate demonstrate their their entitlement entitlement to the summary summary relief relief requested requested Defendants motion therefore therefore must must be and is hereby hereby denied denied in its entirety. entirety. As to Defendant's Defendant's and the motion application to dismiss dismiss the the instant instant action action regarding regarding Shop-Rite Shop-Rite Supermarkets, Supermarkets, Inc. and Shop-Rite Shop-Rite of of application Tallman, the application application is granted. granted. Tallman, arriving at this decision the Court Court has reviewed, evaluated and and considered considered all of of the In arriving this decision reviewed, evaluated issues framed framed by these motion papers failure of of the Court Court to specifically specifically mention mention any issues these motion papers and the failure particular issue in this Decision and Order Order does not mean mean that that it has not not been been considered considered by the particular issue this Decision Court in light light of of the appropriate legal authority. authority. Court appropriate legal Accordingly it is hereby, hereby, Accordingly [* 3] 3 of 4 FILED: ROCKLAND COUNTY CLERK 08/23/2017 02:29 PM NYSCEF DOC. NO. 35 INDEX NO. 034445/2015 RECEIVED NYSCEF: 08/23/2017 ORDERED that that Defendant's Defendant's Notice of Motion Motion for Summary Summary Judgment Judgment is denied denied in its ORDERED Notice of entirety; and it is further further entirety; ORDERED that that the the instant instant action action is dismissed dismissed as to Defendant's Defendant's Shop-Rite Shop-Rite ORDERED Supermarkets, Inc. and and Shop-Rite Shop-Rite of of Tallman; Tallman; and and it is further further Supermarkets, ORDERED that that the the matter matter is adjourned adjourned to THURSDAY THURSDAY SEPTEMBER SEPTEMBER 14, 14,2017 ORDERED 2017 at conference; and and it is further further 9:30 a.m. for a pre-trial pre-trial conference; ORDERED that that the the parties appear for a trial date date on MONDAY MONDAY SEPTEMBER SEPTEMBER ORDERED parties are to appear 25,2017 9:30 a.m. 25, 2017 at 9:30 Dated: New Ci~ew York Dated: New Ci~l:,llf'fow York August~ 2017 Augus~2017 To: BRAUNFOTEL & FRENDEL, FRENDEL, LLC LLC BRAUNFOTEL Attorney for Plaintiffs Plaintiffs Attorney e-file) (via e-file) JAMES C. MILLER, MILLER, ESQ. ESQ. JAMES LAW OFFICES OFFICES OF THOMAS THOMAS M. BONA, BONA, P.C. P.e. LAW Attorney for Defendants Defendants Attorney e-file) (via e-file) [* 4] 4 of 4
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