Appellate Division of the Supreme Court of New York, 2007

Bernth v. King Kullen Grocery Co.

Appellate Division of the Supreme Court of New York · Decided January 30, 2007

36 A.D.3d 844; 830 N.Y.S.2d 222

Cases that cite this one

13 later published cases cite this decision.

Chaney v. Starbucks Corp. (District Court, S.D. New York 2015)
Stern v. Costco Wholesale (Appellate Division of the Supreme Court of New York 2009)
Ramirez v. Creative Linen House, Inc. (Appellate Division of the Supreme Court of New York 2019)
Russo v. Home Goods, Inc. (Appellate Division of the Supreme Court of New York 2014)
Mathew v. A.J. Richard (Appellate Division of the Supreme Court of New York 2011)
Atehortua v. Lewin (Appellate Division of the Supreme Court of New York 2011)
Gradwohl v. Stop & Shop Supermarket Co. (Appellate Division of the Supreme Court of New York 2010)
Flaim v. Hex Food, Inc. (Appellate Division of the Supreme Court of New York 2010)
Marchetti v. Modica (Appellate Division of the Supreme Court of New York 2009)
Gagliardi v. Walmart Stores, Inc. (Appellate Division of the Supreme Court of New York 2008)
Salomon v. Prainito (Appellate Division of the Supreme Court of New York 2008)
Neiderbach v. 7-Eleven, Inc. (Appellate Division of the Supreme Court of New York 2008)
Espinoza v. Hemar Supermarket, Inc. (Appellate Division of the Supreme Court of New York 2007)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

*845In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J), dated February 21, 2006, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly fell over an empty merchandise cart in the frozen food aisle of the defendant’s supermarket. The cart was the type utilized by the defendant’s employees to move merchandise from the storage area to the shelves and was approximately six feet long, five feet high, and one foot wide with orange bars on its sides. The plaintiff testified at his deposition that he saw several such carts in the center of the aisle and that he saw the empty cart his right leg came into contact with before his fall.

The defendant established its prima facie entitlement to judgment as matter of law by demonstrating that the alleged defective condition which caused the plaintiff to trip and fall was open and obvious and not inherently dangerous (see Cupo v Karfunkel, 1 AD3d 48 [2003]; Mansueto v Worster, 1 AD3d 412 [2003]; Schoen v King Kullen Grocery Co., 296 AD2d 486 [2002]; Tresgallo v Danica, 286 AD2d 326 [2001]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Meagher-Cox v Winarski, 32 AD3d 379 [2006]; Tenenbaum v Best 21 Ltd., 15 AD3d 646 [2005]; Mastellone v City of New York, 29 AD3d 540 [2006]; Cupo v Karfunkel, supra). Spolzino, J.P., Florio, Lifson and Covello, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.