CASTRO v. VILLAGE SUPER MARKET OF NY LLC (2022)

Order, Supreme Court, Bronx County (Dawn Jimenez–Salta, J.), entered December 15, 2021, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff was injured when she tripped and fell over a plastic shopping basket on the floor of the supermarket that defendant owned and operated.  The shopping basket was placed on the floor near the customer service podium, and as plaintiff was talking to an employee there, she stepped to her left and tripped over the basket.

Defendant failed to establish its prima facie entitlement to judgment as a matter of law, since the record presents an issue of fact as to whether the shopping basket constituted an open and obvious condition that was not inherently dangerous (see Simo v. City of New York, 205 A.D.3d 508, 509, 165 N.Y.S.3d 853 [1st Dept. 2022]).  The photographs and surveillance footage of the accident do not allow a determination as a matter of law that the shopping basket was plainly observable and posed no danger to a person making reasonable use of her senses (Moss v. Westside Supermarket LLC, 198 A.D.3d 461, 462, 152 N.Y.S.3d 577 [1st Dept. 2021]).  Rather, the evidence shows that the shopping basket was sitting on the floor, low to the ground, next to a large cart with other shopping baskets piled on top of it. (see Legon v. Petaks, 70 A.D.3d 457, 457, 898 N.Y.S.2d 445 [1st Dept. 2010], appeal withdrawn 14 N.Y.3d 884, 903 N.Y.S.2d 772, 929 N.E.2d 1007 [2010]).  Under the circumstances, the basket may well have served as a “trap for the unwary” (Mauriello v. Port Auth. of N.Y. & N.J., 8 A.D.3d 200, 200, 779 N.Y.S.2d 199 [1st Dept. 2004]).