Johnson v. Great Atlantic & Pacific Tea Co. , 13 A.D.2d 781 ( 1961 )

In a negligence action to recover damages for personal injuries, medical and loss of services, defendant appeals from an order of the Supreme Court, Suffolk County, dated August 10, 1960, granting plaintiffs’ motion for summary judgment and directing an assessment of damages, pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. It appears from the moving papers that the female plaintiff was a customer in defendant’s supermarket, being waited on by the produce manager of the store. As the manager was pulling a case of corn out of a refrigerated bin, a wire on the bottom of the case caught the bottom of the bin door and lifted it, with the result that it fell onto said plaintiff’s foot. The opposing affidavit, by defendant’s said employee, states that the ease of corn was being removed from the bin in the usual manner and that he had not seen the wire. In our opinion, it has not been established that under all the circumstances there is no triable issue of fact as to whether defendant was negligent. Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.