On May 25, 2002, the plaintiff Theresa Sahaj was allegedly injured while shopping at Shop-Rite Supermarket, 985 Richmond Avenue, Staten Island, New York, after she removed a 2-liter Coca-Cola bottle from a display. In November, 2004, the plaintiff commenced this action against Shop-Rite Supermarkets, Inc, and issue was joined by service of an answer. In February, 2006, Shop-Rite commenced a third-party action against Coca-Cola Enterprises, Inc., and issue was joined by service of an answer. After the completion of discovery, the defendant Shop-Rite moved for summary judgment dismissing the complaint and all cross-claims against it. Third-party defendant Coca-Cola also moved for summary judgment dismissing the third-party complaint.

To establish a prima facie case of negligence, the plaintiff "must demonstrate the existence of a dangerous or defective condition that caused her injuries, and that the defendants either created or had actual notice of that condition" (Ruggiero v. Waldbaums Supermarkets, Inc., 242 AD2d 268 [2d Dept. 1997]). In support of their respective motions, Shop-Rite and Coca-Cola presented prima facie evidence that no dangerous condition existed (see, Timarchi v. Genovese Drug Stores, 2 AD3d 838 [2d Dept. 2003]; Marusevich v. Great Atlantic & Pacific Tea Company, Inc., 309 AD2d 839 [2d Dept. 2003]).

In opposition, the plaintiff failed to raise a triable issue of fact (see, Caldwell v. [*2]Pathmark Stores, Inc., 29 AD3d 847 [2d Dept. 2006]; Crawford v. Pick Quick Foods, Inc., 300 AD2d 431 [2d Dept. 2002]). The evidence submitted, including the deposition of the plaintiff, the supermarket's grocery manager, and Coca-Cola's merchandise supervisor for Staten Island established that the accident occurred when the plaintiff removed a 2-liter bottle, causing the display to become unbalanced and falling over. No evidence was presented that this display, as originally constructed, was uneven, or that the supermarket was on notice that other customers had removed bottles causing this display to become unbalanced (see, Ruggiero v. Waldbaums Supermarkets, 242 AD2d 268, supra).

Contrary to the plaintiff's contention, the doctrine of res ipsa loquitor does not apply as the plaintiff failed to establish that the defect or condition which caused the accident was in the exclusive control of Shop-Rite or Coca-Cola (see, Trimarchi v. Genovese Drug Stores, Inc., 2 AD3d 838 [2d Dept. 2003]).

Accordingly, it is

ORDERED that the motion of defendant Shop-Rite for summary judgment dismissing the complaint and all cross-claims against it is granted and the complaint and all cross-claims are dismissed as against Shop-Rite; and it is further,

ORDERED that the motion of third-party defendant Coca-Cola for summary judgment dismissing the third-party complaint is granted and the third-party complaint is dismissed; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This is the Decision and Order of the Court.

E N T E R,

Dated: April 23, 2007

J.S.C.