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Harris v. APW Supermarkets

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


June 23, 2009

JOHN HARRIS, APPELLANT,
v.
APW SUPERMARKETS, INC., RESPONDENT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated July 1, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., STEVEN W. FISHER, HOWARD MILLER & PLUMMER E. LOTT, JJ.

(Index No. 26516/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly sustained personal injuries when his right arm made contact with a shelf extender in an aisle of the defendant's supermarket. At his deposition, the plaintiff stated that the shelf extender was made of a clear plastic, approximately a foot in length, and "as wide as it is long." In addition, he acknowledged that it contained certain grocery items at the time of the occurrence. Photographs appearing in the record on appeal depict a shelf extender screwed into the edge of the shelf and protruding out from it.

The defendant established, prima facie, its entitlement to judgment as a matter of law by showing that the shelf extender which allegedly caused the plaintiff's accident was readily observable by the reasonable use of one's senses and was not inherently dangerous (see Neiderbach v 7-Eleven, Inc., 56 AD3d 632, 633). In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212[b]). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

PRUDENTI, P.J., FISHER, MILLER and LOTT, JJ., concur.

20090623

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