Appellate Division of the Supreme Court of New York, 1961

Johnson v. Great Atlantic & Pacific Tea Co.

Johnson v. Great Atlantic & Pacific Tea Co.
Appellate Division of the Supreme Court of New York · Decided May 1, 1961
13 A.D.2d 781; 215 N.Y.S.2d 162; 1961 N.Y. App. Div. LEXIS 11213
Johnson v. Great Atlantic & Pacific Tea Co.

Opinion of the Court

In a negligence action to recover damages for personal injuries, medical and loss of services, defendant appeals from an *782order of the Supreme Court, Suffolk County, dated August 10, 1960, granting plaintiffs’ motion for summary judgment and directing an assessment of damages, pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. It appears from the moving papers that the female plaintiff was a customer in defendant’s supermarket, being waited on by the produce manager of the store. As the manager was pulling a case of corn out of a refrigerated bin, a wire on the bottom of the case caught the bottom of the bin door and lifted it, with the result that it fell onto said plaintiff’s foot. The opposing affidavit, by defendant’s said employee, states that the ease of corn was being removed from the bin in the usual manner and that he had not seen the wire. In our opinion, it has not been established that under all the circumstances there is no triable issue of fact as to whether defendant was negligent. Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.

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