SULINSKI v. ARDCO INC (2002)

Plaintiff was injured when she tripped and fell on the allegedly defective floor of an allegedly defective refrigeration room at the supermarket where she worked.   She commenced this action against defendant Ardco, Inc. (Ardco), which had prefabricated and supplied the refrigeration room, and defendant Vulcan Floors, Inc., which had installed the vinyl floor tile in the room.   In seeking summary judgment, defendants asserted that they had no actual or constructive notice of any alleged defect, that recovery is barred by plaintiff's assumption of the risk, and that the alleged defect was too trivial to be actionable.   We conclude that defendants are not entitled to judgment as a matter of law on any of those grounds and that Supreme Court thus erred in granting defendants' motions for summary judgment dismissing the complaint.

 With respect to the cause of action against Ardco sounding in strict products liability, notice of the alleged defect is not an element of that cause of action (see Colonno v. Executive I Assoc., 228 A.D.2d 859, 860-861, 644 N.Y.S.2d 105;  see generally Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 111, 463 N.Y.S.2d 398, 450 N.E.2d 204;  Caprara v. Chrysler Corp., 52 N.Y.2d 114, 123, 436 N.Y.S.2d 251, 417 N.E.2d 545, rearg. denied 52 N.Y.2d 1073, 438 N.Y.S.2d 1029, 420 N.E.2d 413).   With respect to the remaining causes of action against both defendants, plaintiff alleges that they negligently created or caused the dangerous or defective condition.   Notice of the allegedly dangerous or defective condition also is not an element of those causes of action (see Telesco v. Bateau, 273 A.D.2d 894, 711 N.Y.S.2d 371;  Steenwerth v. United Ref. Co. of Pa., 273 A.D.2d 878, 710 N.Y.S.2d 270;  Sumell v. Wegmans Food Mkts., 254 A.D.2d 702, 702-703, 678 N.Y.S.2d 549), and neither defendant submitted proof that it did not create or cause the allegedly dangerous or defective condition (see Gallagher v. TDS Telecom, 294 A.D.2d 860, 741 N.Y.S.2d 630;  Frank v. Price Chopper Operating Co., 275 A.D.2d 940, 941, 713 N.Y.S.2d 614;  Sumell, 254 A.D.2d at 702-703, 678 N.Y.S.2d 549).

 Defendants likewise are not entitled to summary judgment dismissing the complaint based on the doctrine of primary assumption of the risk, which has no application to this case (see Sammis v. Nassau/Suffolk Football League, 95 N.Y.2d 809, 810, 710 N.Y.S.2d 834, 732 N.E.2d 941;  Robinson v. Albany Hous. Auth., 289 A.D.2d 828, 829, 734 N.Y.S.2d 360;  Burleigh v. General Elec. Co., 262 A.D.2d 774, 775, 691 N.Y.S.2d 662;  Comeau v. Wray, 241 A.D.2d 602, 604, 659 N.Y.S.2d 347;  see also Lamey v. Foley, 188 A.D.2d 157, 166-168, 594 N.Y.S.2d 490).

 Finally, we conclude that defendants failed to establish their entitlement to judgment as a matter of law on the issue whether the defect was too trivial to be actionable (see McKenzie v. Crossroads Arena, 291 A.D.2d 860, 860-861, 738 N.Y.S.2d 779, lv. dismissed 98 N.Y.2d 647, 745 N.Y.S.2d 504, 772 N.E.2d 607;  Kajfasz v. Wal-Mart Stores, 288 A.D.2d 902, 732 N.Y.S.2d 494;  Wolcott v. Forgnone, 277 A.D.2d 1039, 716 N.Y.S.2d 192;  DeFazio v. Hage, 272 A.D.2d 964, 708 N.Y.S.2d 657;  see generally Trincere v. County of Suffolk, 90 N.Y.2d 976, 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489).   We therefore reverse the order, deny defendants' motions and reinstate the complaint.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motions are denied and the complaint is reinstated.

MEMORANDUM: