| Garcia v Eng Food Corp. |
| 2011 NY Slip Op 51277(U) [32 Misc 3d 1213(A)] |
| Decided on July 6, 2011 |
| Supreme Court, Queens County |
| Markey, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Theresa Garcia,
Plaintiff,
against Eng Food Corp. d/b/a C-TOWN, Defendant. |
The defendant's motion for summary judgment on the issue of liability, in this case of a trip and fall over cinder blocks placed within a supermarket during an ongoing reconstruction, is denied. This Court has not found any similar case in New York.
The defendant's reliance on the decision in Gibbons v Lido, Point Lookout Fire Dist., 293 AD2d 646 [2nd Dept. 2002], is misplaced. In Gibbons, the cement block, used as a parking block, in the fire house should have caught the attention of persons walking near it. In the present case, however, placing a cinder block on the floor of a heavily-trafficked supermarket was practically an invitation to injury and harm by shoppers and other business invitees.
The Appellate Division, Second Judicial Department, will not find liability where the alleged hazard "was readily observable by the reasonable use of one's senses." Capasso v Village of Goshen, 84 AD3d 998 [2nd Dept. 2011] [no duty to warn pedestrians of height differential of newly-paved curb]; accord, Insook Lee v Port Chester Costco Wholesale, 82 AD3d 842 [2nd Dept. 2011]. [*2]
In the present case, the supermarket manager, during an ongoing reconstruction or remodeling of the store, knew of the dangerous condition, involving the placing of the three cinder blocks on the floor, for two weeks prior to the accident. The cinder blocks were of a color that blended in with the floor. Plaintiff tripped on one of the protruding cinder blocks. This type of accident could have been anticipated and averted by taking reasonable steps, especially toward a business invitee of a supermarket.
The defendant supermarket's freedom from negligence "is hardly as clear as a mountain lake in springtime to this court faced with a cold record." United States v IBM, 618 F2d 923, 933 [2nd Cir. 1980]. On a motion for summary judgment, to the extent that the placement of the three cinder blocks on the supermarket's floor coupled with the alleged, possible camouflage caused between the coloring of the floor and the cinder blocks, "it is not for this court to usurp the role of the trier of fact." Henriques v Linville, 30 Misc 3d 1215(A), 2011 WL 240773, 2011 NY Slip Op 50074(U) [Sup Ct New York County 2011].
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York
July 6, 2011