Plaintiff Robyn Montgomery commenced this personal injury action on October 29, 2024 against defendant Northeast Grocery, Inc. d/b/a Price Chopper/Market 32 ("PCM" or the "Store"). Plaintiff seeks to recover for injuries she allegedly suffered following an April 12, 2024 incident at PCM's Hamilton Square location in Guilderland New York, when she tripped and fell on a wooden storage pallet that defendant's employees are alleged to have left on the floor in the Store's check-out area (Complaint ¶¶ 1-3, 20-25; Statement of Material Facts, dated April 1, 2025 ["Statement"] ¶¶ 1-4).

Although discovery has yet to be completed, plaintiff now moves for partial-summary judgment on the issue of defendant's liability for the accident (Affirmation in Support of Ronald H. Roth, Esq. ["Roth Aff"] ¶ 2). According to plaintiff, the accident was captured on the Store's surveillance cameras, which revealed the following:

"5. Prior to Plaintiff's trip and fall accident, the pallet was loaded with boxes and placed in the aisle/floor of the checkout section by a supermarket employee, agent and/or servant.

6. For approximately 30 minutes prior to Plaintiff's trip and fall accident, supermarket employees, agents and/or servants unloaded boxes from the pallet until it was completely empty. The pallet never moved from the floor/aisle in the checkout section of Market 32.

7. After the pallet was completely unloaded and no boxes remained on it, it was left unattended in the middle of the aisle in the checkout section, which is where it remained until after plaintiffs trip and fall accident.

8. Once fully unloaded, the empty pallet without any boxes on top of it was approximately ankle-height.

9. At the time of Plaintiff's trip and fall accident (and for multiple minutes prior to it), the unloaded and emptied pallet was located behind cash registers in the checkout section of Market 32.

10. Due to its location behind the cash registers, the pallet was obstructed from the view of customers traversing through the checkout section" (Statement ¶¶ 5-12 [citations omitted]).

Under the circumstances depicted in the surveillance video, plaintiff argues that "Defendant's employees created the dangerous condition in the supermarket . . . [and it was] the proximate cause of Plaintiff's accident and severe injuries (Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment on the Issue of Defendant's Liability at 12-13; see also Surveillance Video).

In opposition to the motion, defendant takes the position that summary judgment should be denied because discovery is incomplete, and the record presents "numerous questions of fact" that "bear on the question of [PCM's] liability in this case" — such as "whether the wooden pallet was an inherently dangerous condition," "whether the pallet was sufficiently open and obvious to dispense with any liability," and "whether comparative negligence was in fact the proximate cause of the accident" (Affirmation in Opposition of Ashley C. DeGennaro, Esq. ¶¶ 12-16).

In reply, plaintiff asserts that, because PCM does not dispute the facts as depicted in the surveillance video, it has failed to raise a genuine issue of material fact that would prevent a finding that defendant is liable for plaintiff's accident (Affirmation in Reply of Ronald H. Roth, Esq., dated April 28, 2025 ["Reply Aff"] ¶ 3). In support of this assertion, plaintiff relies on defendant's Response to plaintiff's Statement, in which PCM admits that "for approximately 30 minutes prior to Plaintiff's trip and fall accident, boxes were unloaded from the pallet until it was empty, and the pallet did not move from the floor/aisle until after Plaintiff's trip and fall accident . . . [and] the pallet was located behind the cash registers of the checkout section of Market 32" (Response to Plaintiff's Statement of Material Facts, dated April 22, 2025 ["Response to Statement"] ¶¶ 6-9). Plaintiff also argues that questions about whether the condition at issue was "open and obvious" are relevant only to the issue of plaintiff's comparative negligence, which is "not at issue as it relates to the within Motion"^[FN1] (id. ¶ 12).

A movant is entitled to summary judgment if she establishes defendant's liability "sufficiently to warrant the court as a matter of law in directing judgment" in its favor (Friends [*2]of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979], quoting CPLR 3212[b]). The proponent of a summary judgment motion must initially make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any genuine material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The failure to make such a showing mandates denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If a prima facie showing is made, the burden shifts to the party opposing the motion for summary judgment to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

On a motion for partial summary judgment on the issue of defendant's liability, "a plaintiff does not have to demonstrate the absence of his or her own comparative fault" (Brady v 2247 Utica Ave. Realty Corp., 210 AD3d 621, 622 [2d Dept 2022]; see generally Rodriguez v City of New York, 31 NY3d 312, 323 [2018]). Rather, questions concerning a plaintiff's comparative fault, such as whether he or she failed to see an open and obvious condition, "[are] to be considered only when addressing the amount of damages owed to plaintiff . . . [and] as such, defendant's assertion [of plaintiff's comparative fault] does not preclude the Court from granting plaintiff partial summary judgment on liability" (Kilmer v 99 John's Market Place, Inc., 81 Misc 3d 171, 181 [Sup Ct New York County 2023] citing Rodriguez, 31 NY3d at 318). In other words, to the extent a defendant raises issues of plaintiff's comparative fault in response to a motion for partial summary judgment on its liability, this "remains an issue for the factfinder at trial" (id.; see also Brady, 210 AD3d at 622 ["even though defendants raised a triable issue of fact as to the plaintiff's comparative negligence, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability as asserted against the property owner").

In New York, "[a] store owner is charged with the duty of maintaining its premises in a reasonably safe condition for its patrons" (Robinson v 206-16 Hollis Ave. Food Corp., 82 AD3d 736, 736 [2d Dept 2011]). Moreover, "[t]he fact that a dangerous condition is open and obvious does not relieve a defendant" of such duty (see Mister v Mister, 188 AD3d 1334, 1334 [3d Dept 2020]; see also MacDonald v City of Schenectady, 308 AD2d 125, 127 [3d Dept 2003] [same]; Cupo v Karfunkel, 1 AD3d 48, 52 [2d Dept 2003] [same]). Rather, the finding that a defect is open and obvious "merely negates the duty to warn of the hazard, not necessarily all duty to maintain premises in a reasonably safe condition" (Westbrook v WR Activities—Cabrera Mkts., 5 AD3d 69, 72 [1st Dept 2004]; see also Mullen v Helen Keller Servs. For the Blind, 135 AD3d 837, 838 [2d Dept 2016] ["While a possessor of real property has a duty to maintain that property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous"]).

Where a surveillance video captures a party employee placing an object in a patron walking area that would normally not be found in such a location, and a patron trips and falls over the object, a court may grant partial summary judgment on liability if it finds that the record evidence shows that placement of such object "left the premises 'less safe' than before, and therefore launched a force or instrument of harm" (see Drummond v 450 Partners LLC, 210 AD3d 494, 494 [1st Dept 2022] [trial court, after review of surveillance footage, correctly found that when employee placed sheet of Masonite on the lobby floor, it made the premises less safe and was an instrument of harm in causing plaintiff to trip and fall, and thus summary judgment [*3]on liability granted to plaintiff]).

I have reviewed the three surveillance videos submitted in support of plaintiff's motion, and on that basis find it indisputable that PCM's employees brought a wooden pallet loaded with boxes to the check-out area of the Store, unloaded the boxes and left the ankle-high pallet in the walk-way that is between the last cash register station and the Store service desk for about six minuted before the accident occurred. As plaintiff walked in front of the row of cash-register stations towards the service desk, she turned left into the walk-way and tripped over the low-lying pallet. In short, I find that the footage demonstrates that when PCM's employees left the empty wooden pallet in the check-out area of the Store, they caused the premises to be "less safe" than before, and that defendant thereby breached its duty to maintain the premises in a reasonably safe condition (see Robinson, 82 AD3d at 736; Drummond, 210 AD3d at 494; Brady, 210 AD3d at 622).

Defendant nonetheless contends that summary judgment is inappropriate here, primarily on the ground that the pallet was an open and obvious condition. In support of this contention, defendant cites a number of cases where defendants were granted summary judgment against plaintiffs who tripped on items in store aisles, because such obstacles were "open and obvious" (see Defendant's Memorandum of Law in Opposition to Plaintiff's Partial Motion for Summary Judgment at 6, citing Neiderbach v 7-Eleven, Inc., 56 AD3d 632, 633 [2d Dept 2008] [dismissing plaintiff's claim for falling on "a blue plastic crate on the floor of an aisle in the defendants' store" since owner "has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous"]; Dapolito v Stop & Shop Supermarket, 90 AD3d 693, 693 [2d Dept 2011] [granting defendant summary judgment when empty display platform on which plaintiff fell "was open and obvious, and not inherently dangerous"]; Maravalli v Home Depot, USA, Inc., 266 AD2d 437, 437 [2d Dept 1999] [granting defendant's summary judgment motion, since the sink vanity on the floor, on which plaintiff fell "was readily observable, the defendant had no duty to warn the plaintiff of the condition"]; Gagliardi v 2 Walmart Stores, Inc., 52 AD3d 777 [2d Dept 2008] [defendant showed entitlement to summary judgment "by demonstrating that the box containing an unassembled chest of dresser drawers, which was placed in the aisle of its store and allegedly caused the plaintiff's injuries, was open and obvious, not inherently dangerous, and not a proximate cause of the accident"]).

There is, however, an important distinction between these cases and the one before me. There is no indication in any of these decisions that store employees were responsible for the particular condition at issue. But here there is no dispute that defendant's workers placed the pallet in the location where plaintiff walked and then left it there, creating the dangerous condition. Under these circumstances, the question of whether or not a defect is "open and obvious" has no bearing on liability, which is only relevant to whether the defendant has the duty to warn the public of an existing defect. As the Third Department stated:

The rule of law which imposes no duty to warn against obvious dangers is founded in the rationale that, under such circumstances, the condition is a warning in itself. Stated otherwise, there should be no liability for failing to warn someone of a risk or hazard which he [or she] appreciated to the same extent as a warning would have provided. The same rationale simply does not hold true with respect to a landowner's more general duty to maintain its property in a reasonably safe condition (MacDonald, 308 AD2d at 128).

In this case, where defendant's employees created the condition at issue, defendant's [*4]liability does not turn on its duty to warn of an existing condition, and thus the legal impact of a finding that a condition is open and obvious — relieving defendant of such a duty — does not rebut defendant's liability here (see Ousterhoudt v Acme Markets, Inc., 214 AD3d 1181 [3d Dept 2023 ["as the record establishes that the pallet jack was left in its location by defendant's employees, defendant failed to establish that it did not create the dangerous condition rendering the notice requirement inapplicable"]; Nezami v Price Costco Inc., 5 Misc 3d 1, 3-4 [Sup Ct, App Term 2nd and 11th Jud Dist 2004][distinguishing Maravalli, supra, on ground that "[t]he court therein stated that the condition which caused the accident could not fairly be attributed to any negligent maintenance of the property . . . while it could in this case," and thus action should not be dismissed because defect was open and obvious]).

As a result, even if there are questions of fact relating to whether the defect at issue was open and obvious, such would not alter the conclusion reached above: the video establishes as a matter of law that defendant created the dangerous condition which was a proximate cause of plaintiff's fall.

PCM's argument that it needs additional discovery is also unavailing. The issues on which it seeks such discovery relate to plaintiff's comparative fault, which is not being decided on this motion. Indeed, discovery will continue in this case and defendant will have an opportunity to depose relevant witnesses concerning plaintiff's culpability for the accident, and obtain medical records concerning any alleged resulting injuries. Moreover, defendant has not offered any evidentiary basis to indicate that further discovery on the issue of PCM's liability may lead to relevant evidence, and thus the claimed need for such discovery is not an obstacle to summary judgment (see Sloan v 216 Bedford Kings Corp., 208 AD3d 1192, 1193 [2d Dept 2022] ["Although determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent of the motion, [a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence"] [citations and internal quotation marks omitted]) .

Accordingly, for the reasons set forth above, it is hereby

ORDERED that plaintiff's motion for partial summary judgment on the issue of defendant's liability is granted; and it is further

ORDERED, that a virtual court conference shall take place on June 30, 2025 at 2:00 p.m. to address scheduling of further matters in this case.

This constitutes the Decision & Order of the Court. The original of this Decision & Order is being electronically filed with the County Clerk, with copies e-mailed to counsel. Counsel are not relieved from the applicable provisions of the CPLR respecting to service and filing of notice of entry.

1. Notice of Motion and Affirmation in Support of Ronald H. Roth, Esq., dated April 1, [*5]2025, with Exhibits annexed thereto, along with Statement of Material Facts, dated and Memorandum of Law, dated April 1, 2025.

2. Affirmation in Opposition, dated April 22, 2025 and Defendant's Memorandum of Law in Opposition to Plaintiff's Partial Motion for Summary Judgment, dated April 22, 2025, along with Response to Plaintiff's Statement of Material Facts, dated April 22, 2025.

3. Reply Affirmation of Ronald H. Roth, Esq., dated April 28, 2025.