| Rejaee v Costco Price Club |
| 2016 NY Slip Op 05101 |
| Decided on June 28, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on June 28, 2016
Friedman, J.P., Andrias, Saxe, Richter, Kahn, JJ.
1617 101717/09
v
Costco Price Club, Defendant-Appellant.
Gallagher, Walker, Bianco & Plastaras, LLP, Mineola (Dominic Bianco of counsel), for appellant.
Melucci, Celauro & Sklar, LLP, Garden City (Daniel Melucci of counsel), for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 1, 2015, which, insofar as appealed from, denied the motion of defendant Costco Price Club (Costco) for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff alleges that after shopping at Costco for at least 20 minutes, one of the wheels of his shopping cart fell off. According to plaintiff, he was injured when he tried to keep the cart from falling over.
Costco established its entitlement to judgment as a matter of law by submitting, inter alia, plaintiff's testimony that he noticed nothing wrong with the cart when he began using it, until one of its wheels began to wobble 10 minutes later. Accordingly, Costco showed that the defect was not visible and apparent, and did not exist for a sufficient amount of time for it to discover and remedy it (see Gordon v American Museum of Natural History , 67 NY2d 836, 837 [1986]; Cataldo v Waldbaum, Inc. , 244 AD2d 446 [2d Dept 1997]).
In opposition, plaintiff failed to raise a triable issue of fact. Contrary to the motion court's finding, plaintiff did not testify that he told a Costco employee of the wheel after it began to wobble, but only that he asked an employee if he could use the employee's cart. Plaintiff's wife also testified that neither she nor plaintiff ever informed any Costco employee of a problem with the cart.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 28, 2016
DEPUTY CLERK