Opinion
100584/08.
Decided February 3, 2010.
Plaintiff commenced this action to recover damages for injuries sustained when she tripped and fell after stepping on a disposable camera box on the floor of defendant WALDBAUM, INC.'s grocery store. It has been alleged that plaintiff was shopping at the defendant store with her son, who was pushing a grocery cart behind her. When she proceeded to the check-out lane from the main aisle of the store, she fell on the disposable camera box.
As a result of said fall, plaintiff allegedly sustained, inter alia, a medial miniscal tear of the left knee; fluid and edema in the prepatellar tissues of the left knee; exacerbation of a right shoulder injury requiring arthroscopy; right shoulder impingement with partial rotator cuff tear requiring arthroscopy; and cuff tendonosis. All of these injuries are said to be accompanied by severe pain; permanent disfiguring scarring; tenderness; swelling; weakness; depression and restriction of motion. She also claims to suffer severe and persistent headaches, dizziness, nervousness, and difficulty sitting, standing, walking, bending, climbing stairs, lifting or carrying heavy objects, sleeping, or finding a comfortable position. In addition, plaintiff claims that she was confined to her bed for six weeks, and confined to her house for three months following the accident.
In moving for summary judgment dismissing the complaint, defendant WALDBAUM, INC. (hereinafter "defendant") contends that there is no proof that defendant created the condition which allegedly caused plaintiff to fall, or that it had notice, either actual or constructive, of a condition existing in its store for any period of time prior to plaintiff's fall that would be sufficient to charge defendant with notice. In this regard, plaintiff testified at her EBT that she was unaware of the existence of the disposable camera box on the floor at any time prior to her fall. Her testimony also indicates that she and her son entered the store around 11:00 pm and were shopping for approximately 20 minutes before proceeding to the check-out lane. During that time, she never heard any announcements over the store's public address system regarding dirt, debris or garbage anywhere in the store, and never saw the camera box prior to her fall. Only afterwards did she learn that her son purportedly observed the disposable camera boxes on the floor before she fell. In addition, defendant claims that plaintiff presents conflicting versions of the events on the night in question. According to defendant, plaintiff testified that her son continuously remained by her side the entire time she was shopping in the store, while her son testified that he veered away from his mother, and went down the main isle, which is when he claims to have noticed 3 — 4 disposable camera boxes on the floor, more than 6 aisles away from where he was standing. However, the son later testified that he only saw one camera box on the floor when his mother fell.
In addition to the foregoing, defendant points to the EBT testimony of its overnight manager, who testified that he was working the evening shift on the night of the subject accident, and that he and another employee inspected the store at 10:30 pm for general cleanliness and checked continuously thereafter throughout his entire shift. He did not recall seeing any film or disposable camera boxes, or any other debris on the floor in the area where plaintiff fell. Accordingly, defendant contends that there is no proof that it had notice of the condition which allegedly caused plaintiff to fall.
In opposition, plaintiff contends that her EBT testimony and that of her son raises triable issues of fact regarding defendant's notice of the alleged dangerous condition. Most importantly, plaintiff contends that her son testified that he observed 3 — 4 disposable camera boxes in a pile on the floor in the main aisle near the check-out lanes approximately 20 minutes prior to his mother's fall. He further testified that he observed his mother trip and fall on a camera box when she approached the check-out lane. As a result, plaintiff contends that the condition must have existed for some time prior to her fall and, therefore, defendant either knew or should have known of the hazard and taken steps to remedy the situation.
It is well settled that in order to establish a prima facie case of negligence in a trip-and-fall case, a plaintiff is required to prove that defendant either created the alleged "dangerous condition" or had actual or constructive notice of it ( cf. Piacquadio v. Recine Realty Corp., 84 NY2d 967, 969; Cerkowski v. Price Chopper Operating Co., 68 AD3d 1382). Actual notice may be found where defendant either created the condition, or was aware of its existence prior to the accident ( see Lewis v. Metropolitan Transp. Auth., 99 AD2d 246, 249, affd 64 NY2d 670). In order to constitute constructive notice, however, a defect must merely be visible and apparent for a sufficient length of time to permit defendant's employees to discover and remedy it ( see Gordon v. American Museum of Natural History, 67 NY2d 836).
Here, while the proof submitted by defendant indicates that the overnight manager did not notice any disposable camera boxes or other debris on the floor of the store on the evening in question, the contrary EBT testimony of plaintiff's son raises a triable issue as to whether, e.g., one or more camera boxes may have been on the floor for an appreciable length of time prior to plaintiff's fall ( see Malenda v. Great Atl Pac Tea Co., Inc. , 50 AD3d 972 ). Issues of credibility cannot be resolved as a matter of law, and present a question of fact for a jury to determine ( see Batchu v. 5817 Food Corp. , 56 AD3d 402 ; Andujar v. Wylong , 53 AD3d 465 ; DiSalvatore v. New York City Tr. Auth. , 45 AD3d 402).
Accordingly, it is
ORDERED that defendant's motion for summary judgment is denied.