The Plaintiff commenced the instant tort action by service of the summons and

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1 )( SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU JACQUELINE MARTIN, as Parent and Natural Guardian of Sarah Martin, an infant under the age of eighteen (18) years and Jacqueline Martin, individually Plaintiffs Michele M. Woodard, IAS Part 24 Index No. : 12414/03 Seq. No against - DECISION AND ORDER KING KULLEN GROCERY CO., INC x Papers read on this motion: Defendant's Notice of Motion Plaintiff s Opposition Defendant' s Reply The motion brought by the Defendant, in the above-captioned action, for an order of this Court, pursuant to CPLR and dismissing the Plaintiff s complaint is denied. 32l2, granting summary judgment in favor of the movant The Plaintiff commenced the instant tort action by service of the summons and verified complaint herein on or about August Issue was joined by service of the defendant' s notice of appearance and verified answer on or about September In her verified bil of pariculars, the Plaintiff alleges that this action arises out of an accident that occurred inside the King Kullen supermarket in Levittown, New York, on March 18, The Plaintiff further alleges that her eighteen (18) month old infant daughter, Sarah Martin, was injured while riding in the child seat of a shopping cart being pulled by her mother, the Plaintiff, which car, the plaintiff claims, was defective and as a result of the defect the cart was caused to suddenly tip over into a magazine rack. It is the Defendant's contention, supported by the oral deposition before trial of Richard Francois, the store manager on duty at the Levittown King Kullen on the day of the subject accident, that the defendant did not have actual or constructive notice of or create the Page 1 of 7

2 alleged defective condition of the shopping cart that is the subject matter of this lawsuit. The rule in motions for summar judgment has been stated by the Appellate Division Second Dept., in Stewart Title Insurance Company Equitable Land Services, Inc., 207 AD2d 880, 881 (2d Dept 1994): It is well established that a part movmg for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Weingrad New York Univ. Med. Center 64 NY2d 851, 853 (1985); Zuckerman City of New York 49 NY2d 557, 562(1980)). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue Bank (State McAulife 97 AD2d 607(3d Dept 1983)), but once a prima facie showing has been made, the burden shifts to the par opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez Prospect Hosp. 68 NY2d 320, 324(1986); Zuckerman City of New York, supra at p. 562). Mr. Francois, at his oral deposition before trial, testified that he was the store manager on duty at the Levittown King Kullen on the day ofthe subject accident. He did not witness the subject accident but proceeded to the accident location immediately after hearing the Plaintiff scream. Upon arriving at the scene, he saw the Plaintiff holding her infant and a shopping cart leaning against a nearby magazine rack. He also observed at that time that the left front wheel ofthe said shopping cart was bent slightly inward. Mr. Francois denied receiving any Page 2 of 7

3 prior complaints regarding a defective shopping car at the subject store. With respect to the maintenance of the shopping carts at the subject store, Mr. Francois testified that the store employed several clerks to gather carts from the store parking lot. The said clerks collected the carts at the front of the store where the cars are cleaned and inspected for any defects. It is the custom and practice of the defendant that any cart that is not working properly and is broken is removed from service. Defective carts are either repaired by the defendant's maintenance department or, if they are beyond repair scrapped. The oral deposition before trial of the Defendant's store manager is sufficient to establish primafacie that the Defendant did not create the alleged defective condition of the subject shopping cart and that the Defendant did not have either actual or constructive notice ofthe alleged defective condition Cataldo Waldbaum, Inc. 244 AD2d 446 (2d Dept 1997). Therefore, the burden shifts to the Plaintiffto proffer evidence raising a triable issue of fact (see, Zuckerman City of New York, supra and Alvarez Prospect Hospital, supra). In opposition to the instant motion, the plaintiffhas submitted the Affidavit of Steven F. Kane, CSP, PE, a Licensed Professional Engineer (PE), licensed in the State of New York a Licensed Professional Safety Engineer, licensed in the State of California and a Certified Safety Professional (CSP). In his Affidavit, Mr. Kane stated: On October 25, 2004, I inspected and examined the shopping cart involved in an accident on March 18, 2003, located in the King Kullen supermarket at 3266 Hempstead Turnpike Levittown, N. The shopping cart was identified by a representative of King Kullen as the cart which was involved in Sarah Marin accident on March 18, 2003 and which had been taken out of commission on that day and placed in the locked storage room Page 3 of 7

4 * * * located on an elevated floor of the building. A piece of paper attached to the shopping car indicates: Save Risk Mgmt Greg Montenegro On the front cross brace of the car is stamped: Technibuilt Newton, NC King Kullen 11 A label on the left rear leg of the cart indicates: Technibuilt A Cariall Inc., Corp. Newton, NC (800) Made in USA Tech-Seal g.3N.KKC My onsite inspection indicated that the cart is mostly of welded construction, with rivets onto the rear handle at the bottom. The rear of the cart measured 25" wide at the handle, which is 40" above the ground. The cart bottom measures 18" above the ground at the rear, and 20" above the ground at the front. The top of the cart measures 37-1/2" above the ground at the rear and 34-3/4" above the ground at the front. The rear track width measured 23-5/8" and the front track width measured 10" The front cross brace is bent, putting the right front wheel on an angle. The bend is 10-1/2" from the left on the brace that measured 15-5/8" wide. The bend measures 15/32" up from level. The inside wheel edge is rounded more than the other wheels. The bracket holding the wheel is also bent, the bend Page 4 of 7

5 * * * measuring 9 degrees. The wheels measured 4-7/8" in diameter. The wheel twist measured 11 degrees horizontal and 5 degrees vertical. The cart was very easy to tip when pressure is applied at the right front. Tipping force was measured using a Chattilon MFM- I00 digital force meter. Applying a vertical force measuring more than 80 pounds at the left front corner of the cart failed to tip the cart. However, applying a vertical force of just pounds at the right front corner of the cart caused the cart to tip. Testing on another Technibuilt car required more than 80 pounds to tip. This accident was caused by a defective shopping car. King Kullen failed to exercise due care in the maintenance and inspection ofthe shopping carts. If the front cross brace of this car had not been bent, this accident would not have occurred. The incident shopping car is patently defective, and has been defective for many weeks, even months. The front cross brace that supports the front wheels is bent, and the bracket holding the right front wheel is bent, causing the right front wheel to be on an angle. The right front wheel stays sideways, with the outside edge forward. This causes the right front wheel to be out of alignment to support the car, allowing the cart to tip at an abnormally low vertical force. This is the defect that caused the cart to tip during this accident. This was a particularly dangerous and trap-like condition because it did not affect the ordinar motion of the cart when pushed from the opposite end. This accident would not have happened if the cross brace and wheel bracket were not bent. The cross brace and wheel bracket have been bent for many weeks or months. This is evidenced by inside wheel edge being rounded more than the other wheels. This rounding would take Page 5 of 7

6 * * * a significant amount of time. The rounding of the wheel edge would take a significant amount oftime because the wheels are a hard plastic or rubber, and the only time they would subjected to a surface capable of causing the wear observed is when the shopping cart is pushed across the sidewalk or parking lot. The parking lot is relatively small, perhaps smaller than a football field, requiring many trips to cause the wear seen on the wheel. Therefore, King Kullen had ample opportunity to observe the defective cart and remove it from service. In this maner King Kullen failed to exercise due care in the maintenance and inspection of the shopping carts. It is my opinion within a reasonable degree of engineering certainty that this accident was caused by a defective shopping cart that was patently defective, and had been defective for many weeks, even months. The front cross brace that supports the front wheels is bent, and the bracket holding the right front wheels is bent, causing the right front wheel to be on an angle. This causes the right front wheel to be out of alignment to support the cart, allowing the car to tip at an abnormally low vertical force. This is the defect that caused the cart to tip during this accident." It is axiomatic that summary judgment requires issue- finding rather than issue-determination (see, Heller Trustees of Town of East Hampton 166 AD2d 554 (2d Dept 1990); Rotuba Extruders Ceppos 46 NY2d 223 (1978) ands. J. CapelinAssoc., Inc. Globe Mfg. Corp. 34 NY2d 338 (1974). On the summar judgment motion, the Court is not to tr the issues; its function is merely to determine whether any issue exists Silman Twentieth Century-Fox Film Corp. 3 NY2d 395(1957). The motion cannot be granted unless the movant has made out a case by the undisputed material facts presented on the record by an affidavit or other proof Barrett Jacobs 255 NY 520; Piccolo DeCarlo 90 AD2d 609 (3d Dept 1982). If material facts are in dispute or different inferences may reasonably be drawn from facts Page 6 of 7

7 '" themselves undisputed, the motion for summar judgment must be denied Michelfeld 97 AD2d 755 (2d Dept 1983). Supan The Affidavit of the Plaintiffs expert, Steven F. Kane, is sufficient to raise a triable issue of fact as to whether a reasonable inspection of the Defendant's shopping carts occurred prior to the subject accident see Currado Waldbaum, Inc. 303 AD2d 442 (2d Dept 2003). Therefore, there being evidence that a reasonable inspection ofthe subject shopping cart would have revealed the existence of the undisputed bent front cross brace, lack of actual or constructive notice is not available to the Defendant Albergo Deer Park Meat Farms Inc. 138 AD2d 656 (2d Dept 1988). Furthermore, the Defendant has as nondelegable duty to maintain the equipment on its premises in a reasonable safe condition Dorchester Assoc. 32 NY2d 553 (1973). see, Rogers Accordingly, the instant motion is denied. Ordered that the parties shall appear for Trial on June at 9:30 a. This constitutes the Decision and Order of the Court. DATED: Mineola, New York June 24, 2005 ENTERED:. J. M. WOODAR COU u CO ss \.e.p-\( 1:'( C n'( '5 Off\Ce. Page 7 of 7