Opinion
No. CA 07-02440.
June 6, 2008.
Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered May 31, 2007 in a personal injury action. The order denied the motion of plaintiff for partial summary judgment on the issues of liability and comparative negligence.
MERKEL MERKEL, ROCHESTER (DAVID A. MERKEL OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BROWN HUTCHINSON, ROCHESTER (SPENCER L. ASH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Present: Martoche, J.P., Centra, Lunn, Fahey and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the motion is granted.
Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained when a box containing a television set fell from a pallet and struck her in the back of her left leg. We agree with plaintiff that Supreme Court erred in denying her motion seeking partial summary judgment on the issues of defendant's liability and her alleged comparative negligence. Plaintiff was a customer in defendant's store at the time of the accident, and defendant thus owed plaintiff a duty to maintain its premises in a reasonably safe condition ( see Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872). Plaintiff met her initial burden on her motion of establishing the breach of that duty by showing that defendant's employees negligently transported the television set on the pallet without tying it down and thereby allowed the television set to fall from the pallet, causing plaintiff's injuries. Plaintiff further met her burden of establishing her entitlement to judgment as a matter of law on the issue of her alleged comparative negligence by establishing that the television set struck her from behind, without any warning from defendant's employees or, indeed, from any other persons. Defendant failed to raise an issue of fact to defeat the motion ( see generally Zuckerman v City of New York, 49 NY2d 557, 562; Earl v Adducci, 43 AD3d 1286).