Fiorentino v. Uncle Giuseppe's of Port Wash., Inc.

208 A.D.3d 757

172 N.Y.S.3d 623 (Mem)

Jasun FIORENTINO, et al., respondents,

v.UNCLE GIUSEPPE'S OF PORT WASHINGTON, INC., appellant.

2021–01779

Index No. 613608/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 24, 2022

August 24, 2022

Martyn, Martyn, Smith, Murray and Yong, Mineola, NY (David W. Allen and David Smith of counsel), for appellant.

Wooster & Wooster LLP, Garden City, NY (Scott Wooster of counsel), for respondents.

MARK C. DILLON, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered February 8, 2021. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On May 23, 2018, the plaintiff Jasun Fiorentino (hereinafter the injured plaintiff) was shopping in the defendant's store in Port Washington. While the injured plaintiff was in the process of checking out, he reached down to grab an item from the lower shelf of a metal rack located at the beginning of the check-out counter. As he attempted to extend his reach, his right leg came into contact with a store cashier walking to his register. The contact caused the injured plaintiff to strike his head on a portion of the metal rack and sustain injuries, requiring, inter alia, two staples to his scalp.

In October 2018, the injured plaintiff, and his wife suing derivatively, commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint. In an order entered February 8, 2021, the Supreme Court denied the motion, and the defendant appeals.

"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ). There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault (see Gobin v. Delgado, 142 A.D.3d 1134, 1135, 38 N.Y.S.3d 63 ). Generally, it is for the trier of fact to determine the issue of proximate cause (see M.M.T. v. Relyea, 177 A.D.3d 1013, 1013, 114 N.Y.S.3d 385 ; Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ).

Here, the defendant failed to establish, prima facie, that the injured plaintiff...