Levidow, Levidow & Oberman, P.C., for Plaintiff.
Lester, Schwab, Katz & Dwyer, LLP, for Defendant.
JOSEPH J. MALTESE, J.
The defendant's motion for summary judgment dismissing the plaintiff's complaint is granted.
In this action by Debra Jo Huertas to recover for personal injuries allegedly sustained as a result of a trip and fall over stacked boxes. The defendant United Parcel Service (UPS) asserts that the plaintiff's suit is preempted under federal law. At the time of the accident on October 3, 2008 the plaintiff was employed by TJ Maxx located on 1015 Forest Avenue, Staten Island, New York. The plaintiff testified at a deposition that on the date of the accident she signed for packages delivered by a delivery person employed by UPS, who was not the usual delivery person. According to the plaintiff, the regular UPS delivery person would place packages on the counter behind the registers located at the front of the store.
However, testimony of Deborah Punzone, an assistant store manager, states that only " small packages" were left on the [974 N.Y.S.2d 759] counter behind the register. Another assistant store manager, Jonathan Bacon, testified that there was no set procedure concerning where the defendant would leave packages. According to Mr. Bacon, whomever signed for the packages was responsible for moving the boxes. He testified:
If she [the plaintiff] signed for the packages, then she should have made sure that the packages were not in her direct field— I mean that the packages wasn't in her walkway or anybody else's walkway. So she should have moved the packages ...
When questioned about the accident during her deposition the plaintiff testified as follows:
Q. What happened next? Did you sign?
A. I said to the UPS guy, please put the boxes on the counter. We don't want to have customers fall over them. He said, yeah, yeah, yeah, I will do it, just sign. I said, No, you are going to put them up, right, and he said, Yeah, I'm going to do it. At that point I was going to sign and a customer called my name, Debra Jo, I need assistance. Could you help me. I walked the same way as when I came. I went that same way back because she was in the middle of, like, the third register.
The plaintiff described her fall as follows:
... I had to go on the register so now I was walking down from the end where I was working, the customer in the middle. I think I left her there because that's where the line was for her to go on and I came around and I tripped over the boxes. I came around in front of the register. I was going to go through the door by the glass door and that's when I tripped over the boxes ...
The plaintiff described the stack of boxes as being approximately three feet in height by five or six feet in length.
The defendant moves for summary judgment arguing: first, that the plaintiff's claims are pre-empted by the federal Airline Deregulation Act of 1978(ADA)  and the Federal Aviation Administration Authorization Act (FAAAA) ; second that the defendant owed the plaintiff no ...