NEZAMI v. PRICE COSTCO INC (2004)

Appeal by defendant from so much of an order of the Civil Court, Queens County (E. Walker, J.), dated July 3, 2002, as denied its motion to set aside a jury verdict on the issue of liability, finding defendant 75% at fault, and plaintiff 25% at fault, and only granted the motion to the extent of reducing the verdict on the issue of damages from the principal sum of $350,000 to the sum of $340,000, thereby awarding plaintiff the sum of $255,000 (75% of $340,000), and from the judgment of the same court, entered on October 3, 2002, in the principal amount of $255,000.

Appeal from order unanimously dismissed.

Judgment unanimously reversed without costs and a new trial ordered.

 In our view, defendant was sufficiently apprised that the plaintiff was basing its theory of liability on a claim of actual notice of the condition of the aisle where plaintiff fell.   The court properly denied the defendant's motion at the outset of the trial to preclude plaintiff from claiming that defendant had actual notice.   The issue of actual notice had emerged in an affidavit submitted by plaintiff's son-in-law in opposition to defendant's prior motion for summary judgment.   He stated that one-half hour before his father-in-law fell, he noticed papers, boxes and debris in the subject aisle and that there were store personnel in this area (Weisberg v. My Mill Holding Corp., 205 A.D.2d 756, 613 N.Y.S.2d 680 [1994] ).

 However, the court should not have excluded the hourly walk around reports of defendant done in the ordinary course of business which stated that the floor of the warehouse was clean.   These reports were relevant because they might have affected the jury's determination of the credibility of the plaintiff's witness who claimed that defendant had actual notice of the debris on the floor.   Defendant's evidence tending to establish routine cleaning of the subject location and, possibly, cleaning shortly before the incident, presents a factual dispute for resolution by the trier of facts (see Goldblatt v. Fairway Supermarket, 268 A.D.2d 248, 701 N.Y.S.2d 45 [2000] ).

 The action should not have been dismissed on the ground that the condition was open and obvious.   Proof that a dangerous condition is open and obvious no longer precludes a finding of liability against a landowner, it is merely relevant to the issue of plaintiff's comparative negligence (Cupo v. Karfunkel, 1 A.D.3d 48, 51-53, 767 N.Y.S.2d 40 [2003] ).   While we recognize that a court is not precluded from granting summary judgment to a landowner on the ground that the condition complained of by plaintiff was both open and obvious and, as a matter of law, not inherently dangerous (Cupo, 1 A.D.3d 48, 767 N.Y.S.2d 40, citing Maravalli v. Home Depot U.S.A., 266 A.D.2d 437, 698 N.Y.S.2d 708 [1999] ), the instant case is factually distinguishable from Maravalli, supra.   The court therein stated that the condition which caused the accident could not fairly be attributed to any negligent maintenance of the property.   In the case at bar, the plaintiff's son-in-law testified that defendant's employees were cutting the tops of boxes and putting them on the floor.   He stated that there were papers, debris and boxes on the floor.   Unlike the situation in Maravalli, supra, if plaintiff's son-in-law's testimony is believed, the conditions which caused the accident herein can be fairly attributed to the negligent maintenance of the property.

We note in passing that the court should have granted defendant's request for a two day continuance of the damage portion of the trial so that the doctor who examined plaintiff on defendant's behalf could testify.

The appeal from the intermediate order is dismissed because any right of direct appeal therefrom terminated with the entry of judgment (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ).