LYNCH v. WHOLESALE GROCERS INC (2018)

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered November 17, 2016, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff truck driver/delivery person alleges that he was injured while manually unloading heavy boxes from a trailer owned by defendant.  Plaintiff claims the shrink-wrap used by defendant's employees to secure the boxes to a pallet came loose, causing the boxes to fall to the floor and requiring them to be unloaded by hand.

Defendant established its entitlement to judgment as a matter of law first by showing that it did not create the alleged hazardous condition.  Defendant submitted, inter alia, plaintiff's testimony that he and defendant's employees inspected the trailer before he left defendant's facility to commence deliveries, and did not observe loose boxes on the floor.  Nor did plaintiff observe loose boxes when he re-secured the load after his first delivery on the day of his accident (see e.g. Atashi v. Fred–Doug 117 LLC, 87 A.D.3d 455, 928 N.Y.S.2d 529 [1st Dept. 2011];  Castore v. Tutto Bene Rest. Inc., 77 A.D.3d 599, 909 N.Y.S.2d 452 [1st Dept. 2010] ).  Defendant also showed that it lacked actual or constructive notice that there were boxes on the trailer's floor.  Plaintiff testified he did not notify defendant about the loose boxes before he decided to manually unload them at his second delivery of the day (see Briggs v. Pick Quick Foods, Inc., 103 A.D.3d 526, 962 N.Y.S.2d 46 [1st Dept. 2013] ).

In opposition, plaintiff failed to raise a triable issue. The possibility of injury arose only when plaintiff voluntarily opted to pick up the boxes and toss them to a store employee, even though he was not required to do so (see Lee v. New York City Hous. Auth., 25 A.D.3d 214, 219, 803 N.Y.S.2d 538 [1st Dept. 2005], lv denied 6 N.Y.3d 708, 812 N.Y.S.2d 443, 845 N.E.2d 1274 [2006] [“(t)he law draws a sharp distinction between a condition that merely sets the occasion for or facilitates an accident and an act that is a proximate cause of the accident”] ).

Furthermore, plaintiff's certified packing expert failed to identify any professional or industry standard to substantiate his assertions (see Griffith v. ETH NEP, L.P., 140 A.D.3d 451, 452, 33 N.Y.S.3d 238 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209191 [2016];  Jones v. City of New York, 32 A.D.3d 706, 707, 821 N.Y.S.2d 548 [1st Dept. 2006] ) ).  The fact that defendant may have been aware that shrink-wrapping had previously come loose from other pallets did not establish that defendant had constructive notice that the subject pallet was loose before plaintiff sustained the injuries alleged (see Vaughn v. Harlem Riv. Yard Ventures II, Inc., 118 A.D.3d 604, 989 N.Y.S.2d 464 [1st Dept. 2014] ).