Feldmus v. Ryan Food Corp. , 818 N.Y.S.2d 98 ( 2006 )

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated March 3, 2005, which granted that branch of the motion of the defendant Ryan Food Corp. which was for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Ryan Food Corp. is denied, and the complaint is reinstated insofar as asserted against that defendant.

The plaintiff claims that the defendant Ryan Food Corp. (hereinafter the defendant) created a tripping hazard which caused her to fall in the defendant’s supermarket. In her examination before trial, she testified that she fell over “a big loaf of bread in a plastic bag.” She claims that the plastic bags were left on the floor by a store employee who was restocking a bread shelf.

The defendant failed to establish its entitlement to judgment as a matter of law. In support of that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, the defendant submitted the deposition testimony of a nonparty witness who stated that shortly prior to the plaintiffs fall he observed a store employee restocking a bread stand in the area where the plaintiff fell and subsequent to the plaintiffs fall he observed empty plastic bags in the area where the plaintiff fell. The defendant also submitted the deposition testimony of the defendant’s store manager that, after conferring with the office manager, he ascertained that the plaintiff slipped on an empty plastic bag.

In its defense, the defendant asserted that its shelves were stocked by outside vendors, not store employees, without any supervision by anyone from the store. Hank Chung, who managed the store on the day of the accident, testified at his deposition that the vendors would “come in, pack out and go” without any checking by store employees. It cannot be said as a matter of law that this practice absolved the defendant of all responsibility for maintaining a safe premises.

In support of the motion, Hank Chung submitted an affidavit, which, in apparent contradiction to his deposition testimony, stated that “one of my job duties is to walk around the store to make sure that all merchandise is stocked in a safe manner . . . [t]his duty is performed continuously throughout the day [and] was performed through out the day” of the accident. In any event, this conclusory affidavit failed to state the frequency of the inspections nor did it indicate when prior to the accident the store was last inspected and therefore was insufficient to warrant granting the defendant summary judgment (see Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]; Lorenzo v Plitt Theatres, 267 AD2d 54 [1999]).

In any event, in opposition to the defendant’s motion, the plaintiff submitted the deposition testimony of the defendant’s office manager who testified that store employees, not outside vendors, stocked the shelves and no one routinely inspected the store for hazardous conditions. This testimony was sufficient to raise a triable issue of fact. Florio, J.P., Goldstein and Skelos, JJ., concur.