Jacobson & Schwartz, LLP, Jericho, NY (Henry J. Cernitz
of counsel), for defendants third-party
Law Group, LLC, Huntington, NY (Curtis Sobel and Sean
Callahan of counsel), for defendants third-party
and Kremins, LLP (Alexander J. Wulwick, New York, NY, of
counsel), for plaintiffs-respondents.
PRISCILLA HALL, J.P. SANDRA L. SGROI JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
defendants third-party defendants appeal, as limited by their
brief, from so much of an order of the Supreme Court, Queens
County (Velasquez, J.), entered September 8, 2015, as denied
their motion for summary judgment dismissing the amended
complaint, the third-party complaint, and all cross claims
insofar as asserted against them, and the defendants
third-party plaintiffs cross-appeal, as limited by their
brief, from so much of the same order as denied their cross
motion for summary judgment dismissing the amended complaint
and all cross claims insofar as asserted against them.
that the order is affirmed, with one bill of costs payable to
the plaintiffs by the defendants third-party plaintiffs and
the defendants third-party defendants.
plaintiff Howard Taub (hereinafter the injured plaintiff)
allegedly was shopping on premises owned by the defendant
third-party plaintiff JMDH Real Estate of Garden City
Warehouse, LLC, and operated by the defendant third-party
plaintiff Restaurant Depot Enterprises, LLC (hereinafter
together the defendants), when cases of cooking oil fell from
a wooden pallet held aloft by a hi-lo device, hitting his
head. The injured plaintiff, and his wife suing derivatively,
thereafter commenced this action against the defendants to
recover damages for personal injuries. The defendants, in
turn, commenced a third-party action against the cooking oil
suppliers, the defendants third-party defendants Admiration
Foods and Supreme Oil Company, Inc. (hereinafter together the
third-party defendants). The plaintiffs amended the complaint
to assert a cause of action alleging negligence against the
third-party defendants, and the defendants and third-party
defendants asserted cross claims for indemnification and
contribution against each other.
third-party defendants moved for summary judgment and the
defendants cross-moved for summary judgment. The Supreme
Court denied the motion and the cross motion.
owners are charged with the duty of keeping their premises in
a reasonably safe condition for the benefit of their
customers" (Russo v Home Goods, Inc., 119
A.D.3d 924, 925; see Peralta v Henriquez, 100 N.Y.2d
139, 143). To be entitled to summary judgment in a premises
liability case, the defendant is required to show, prima
facie, that it maintained its premises in a reasonably safe
condition and that it did not have notice of or create a
dangerous condition that posed a foreseeable risk of injury
to persons expected to be on the premises (see Gradwohl v
Stop & Shop Supermarket Co., LLC, 70 A.D.3d 634,
the defendants failed to eliminate triable issues of fact as
to whether they maintained their premises in a reasonably
safe condition and did not create the alleged hazardous
condition (see Torres v 63 Perry Realty, LLC, 123
A.D.3d 911, 913-914; Hinds v Wal-mart Stores, Inc.,
52 A.D.3d 1218, 1218-1219). In particular, there are triable
issues of fact as to whether the defendants created an
unreasonable and foreseeable risk of injury by removing
pallets heavily loaded with merchandise from high shelves
during business hours without warning the injured plaintiff
to keep a safe distance away or otherwise preventing him from
approaching too closely.
the third-party defendants, to provide constructive notice,
"a defect must be visible and apparent and it must exist
for a sufficient length of time prior to the accident to
permit defendant's employees to discover and remedy
it" (Gordon v American Museum of Natural
History, 67 N.Y.2d 836, 837). "[C]onstructive
notice will not be imputed where a defect is latent and would
not be discoverable upon reasonable inspection"
(Curiale v Sharrotts Woods, Inc., 9 A.D.3d 473, 475;
see Lal v Ching Po Ng, 33 A.D.3d 668; Lee v
Bethel First Pentecostal Church of Am., 304 A.D.2d 798;
Monroe v City of New York, 67 A.D.2d 89, 93).
the third-party defendants submitted the transcript of the
deposition testimony of a logistics and shipping employee who
testified generally as to the third-party defendants'
inspection of pallets before packing them with oil. That
employee lacked personal knowledge as to when this specific
pallet was last inspected, whether pallets were inspected for
defects other than missing wooden slats, and the extent to
which the third-party defendants received prior complaints
about defective pallets. The third-party defendants thereby
failed to eliminate triable issues of fact, among other
things, as to whether they lacked constructive notice of the
defect in the pallet or whether the defect was latent
(see Milorava v Lord & Taylor Holdings, LLC, 133
A.D.3d 724, 725-726; McGough v Cryan, Inc., 111
A.D.3d 900, 901; Sherry v Wal-Mart Stores E., L.P.,
67 A.D.3d 992, 993-994).
neither the defendants nor the third-party defendants
satisfied their prima facie burden, we need not consider the
sufficiency of the opposing papers (see ...