INSUFFICIENT EVIDENCE DEFENDANT HAD CONSTRUCTIVE NOTICE OF A LOOSE PANEL ON A SELF CHECK OUT MACHINE IN DEFENDANT’S STORE; THE PANEL ALLEGEDLY FELL OFF AND INJURED PLAINTIFF’S FOOT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s (BJ’s) motion for summary judgment in this personal injury case should have been granted. There was insufficient evidence BJ’s had constructive notice that a metal panel on a self-check-out machine could detach and fall off. It was alleged plaintiff’s foot was injured by the panel:

It is well established that, “[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant’s employees to discover and remedy it” … . Here, defendants’ submissions on the motions established that no one, including plaintiff, observed any defect in the machine or the metal panel that injured plaintiff … . Indeed, defendants’ evidence demonstrated that the self-check-out machine was inspected and tested on the morning of the incident, that an employee was stationed directly in front of the machine prior to the incident and observed nothing abnormal about the machine, and that plaintiff herself had observed nothing abnormal about the machine while standing in line and waiting to use it. Although the deposition testimony of one of BJ’s employees referenced that the employee had previously “adjust[ed]” a panel on an unidentified self-check-out machine at some time, nothing in that testimony indicated that BJ’s had notice of a defective or dangerous condition of the machine that injured plaintiff. Ginsberg v BJ’s Wholesale Club, Inc., 2020 NY Slip Op 05350, Fourth Dept 10-2-20