Chartwell Law partner, Gregg S. Scharaga recently won a motion for summary judgement in Ana Gomez Martinez v. Suffolk Food Corp., d/b/a C-Town Supermarket. Mr. Scharaga’s client, C-Town Supermarkets, operates a grocery store in Long Island, New York. The plaintiff, in the case, tripped over a box of cucumbers on the floor in the refrigerated section of produce and was looking to recover damages for personal injuries.
Mr. Scharaga was successful in establishing testimony from plaintiff that she was familiar with the defendant's store, the produce section layout and she had previously seen cardboard boxes on the floor, usually stacked three-boxes high. Plaintiff testified that she had no difficulty seeing the floor on the day of her accident, and spent about 15 minutes in the immediate area selecting cabbage. Mr. Scharaga was able to establish that a court may determine whether a condition is hazardous and open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence (Fishelson v. Kramer Props., LLC, 133 AD3d 706, 707, quoting Tagle v. Jakob, 97 NY2d 165, 169.) The testimony, together with photographs of the site authenticated by plaintiff during her deposition, was sufficient to show the cardboard box containing cucumbers alongside the base of the refrigerated section “was readily observable by the reasonable use of one's senses and not inherently dangerous.” The plaintiff failed to demonstrate otherwise in opposition.