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Decided on June 27, 2008
Supreme Court, Tompkins County

2006-0391
WILLIAMSON, CLUNE & STEVENS By: Allan C. VanDeMark, Esq. 317 North Tioga Street Ithaca, New York 14850 HISCOCK & BARCLAY, LLP By: Kevin M. Hayden, Esq.
Attorneys for Defendant
One Park Place
300 South Salina Street
Syracuse, New York 13202
Robert C. Mulvey, J.
The defendant, Sears, Roebuck and Company, has brought a motion seeking summary judgment and dismissal of the plaintiff's complaint in this action for personal injuries arising out of a trip and fall in the defendant's store. The plaintiff has submitted papers in opposition to the defendant's motion and the defendant has submitted reply papers.
The plaintiff fell in an aisle of the hardware department at the Sears store in Lansing, New York on April 21, 2004. The record reflects that after the plaintiff turned a corner to proceed down an aisle and, as he was glancing at a sale flyer that he was holding, he tripped over a tool box that was in the aisle and fell to the floor. Plaintiff testified that he did not see the tool box prior to the fall, but stated that when he tried to get up there was a tool box on the floor between or close to his legs, there was one in front of him next to the shelves and there was one on the floor behind him where he came into the aisle alongside of the shelving.
The defendant seeks summary judgment and dismissal of the plaintiff's action on the grounds that there is no evidence that Sears placed the tool box in the aisle and no evidence that Sears had actual or constructive notice that the tool box was in the aisle before the accident. In support of its motion, the defendant relies upon the deposition testimony of two Sears employees and the deposition testimony of the plaintiff. Francis Kucinsky, a loss prevention detective for Sears, and Akela Mears, a sales representative, both testified that they did not witness the accident. Ms. Mears also testified that she didn't have any recollection of the accident and did not recall receiving any complaints about items left in the aisle around the time of the accident. Mr. Kucinsky did not inspect the area where the accident occurred until after the plaintiff was interviewed by the assistant manager. He also testified that he was not aware, before April 21, 2004, of any complaints made to any personnel at Sears about merchandise being in the aisles. He further stated that he never noticed any merchandise being stored in the aisles prior to the accident date and that Sears had associates that are in charge of aisles and they are always making sure that the aisles are up to specifications.
Defendant contends that it is entitled to summary judgment and dismissal of the plaintiff's complaint based upon the testimony of the two Sears employees as well as the plaintiff's admissions at his deposition that he did not see the tool box before he fell, and he did not know how the tool box was placed on the floor. [*2]
Plaintiff opposes the defendant's motion on the ground that the record contains questions of fact as to whether or not Sears created the defective condition. Plaintiff's counsel points to evidence in the record from the plaintiff's deposition testimony that there were three tool boxes on the floor of the aisle where the plaintiff fell and that he didn't see any empty spaces on the shelves and also the testimony from Ms. Mears that before April of 2004, items were stored on the floor of aisles if they were larger items, including tool chests, or there were enough items to make a display.
In order to be successful on its motion for summary judgment the defendant "is required to establish as a matter of law that [it] maintained the property in question is a reasonably safe condition and that [it] neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof" Alig v. Parkway Parking of New York, Inc., 36 AD3d 980, 980, citing Mokszki v. Pratt, 13 AD3d 709, 710, quoting Richardson v. Rotterdam Square Mall, 289 AD2d 679, 679.
Upon review and consideration of the papers submitted, the Court has determined that the defendant's motion should be denied.
Although both Sears employees testified that they had not received any complaints about merchandise being stored in the aisles prior to the date of the accident, neither employee testified that he nor she checked or inspected the particular aisle where the plaintiff fell at any time on April 21, 2004, before such fall. There is also no proof as to how or what merchandise was stored or displayed in that aisle. Even assuming that the evidence presented by the defendant was sufficient to make a prima facie showing of entitlement to summary judgment, the Court finds that the testimony of the plaintiff that there were three tool boxes close to him on the floor of the aisle when he tried to get up, taken together with the testimony of Ms. Mears that merchandise was stored on the floor in aisles, is sufficient to raise a triable issue of fact as to whether the defendant created the defective condition or had actual notice thereof. (See, Petri v. Half Off Cards, Inc., 284 AD2d 444; compare, Ruisi v. Franks' Nursery and Crafts, Inc., 272 AD2d 314). The Court finds that the case of Van Winkle v. Price Chopper Operating Company, Inc., 239 AD2d 692, cited by the defendant, is factually distinguishable from the case at bar. Further, the Court is not persuaded that Ms. Mears' testimony limited the placement of products on the floor to only the main aisle or the "end cap" areas.
Moreover, the record indicates, through the testimony of Ms. Mears, that products were placed on certain shelves or aisles in accordance with a model or plan-o-gram that came from corporate headquarters. However, the record also indicates that when plaintiff's counsel requested a copy of the specifications of where the merchandise was to be placed at this Sears store on or about April 21, 2004, defense counsel responded that the "planograms" referred to at the deposition are regularly changed and later discarded and, as a result, the specific "planogram" used on the date of loss is no longer available.
Upon the record presented, the Court finds that triable issues of fact exist as to whether [*3]the defendant created the defective condition or had actual notice of such condition and that such issues of fact preclude the granting of the defendant's motion.
Accordingly, for the reasons set forth above, it is
ORDERED that the defendant's motion seeking summary judgment and dismissal of the plaintiff's complaint is hereby denied.
This shall constitute the Decision and Order of the Court. No costs are awarded on the motion.
Dated:June _____, 2008_________________________________
Robert C. Mulvey

J.S.C.

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