Figueroa by Figueroa v. Waldbaum's Inc.

• Decision Date: 08 January 1994
• Parties: Alexander FIGUEROA, an infant under the age of 14 years; by his mother and natural guardian, Maria Figueroa; and Maria Figueroa, Individually, Plaintiffs, v. WALDBAUM'S INCORPORATED, Defendant.
• Court: New York Supreme Court

Page 764

609 N.Y.S.2d 764

160 Misc.2d 379

Alexander FIGUEROA, an infant under the age of 14 years; by

his mother and natural guardian, Maria Figueroa; and Maria Figueroa, Individually, Plaintiffs, v. WALDBAUM'S INCORPORATED, Defendant.

Supreme Court, Nassau County,

IAS Part 11.

Jan. 8, 1994.

Augustin J. San Filippo, New York City, for plaintiffs.

Karl, Clerkin, Redmond & Ryan, Mineola, for defendant.

JAMES J. BRUCIA, Justice.

It is ordered that this motion by plaintiffs for summary judgment on the issue of liability, and an order setting this case down for a hearing on the issue of damages, is granted in accordance herewith.

In this case, a three-year-old boy inserted his finger into an exposed moving conveyor belt mechanism at check-out counter # 8 at defendant's supermarket. At his deposition the store manager testified that the 1 1/2 foot-long side panel removed from the conveyor belt mechanism at register # 8 was never found (Marazzo transcript, pages 25, 41) and no witnesses actually saw the accident, not even the cashier at register # 8 (Id. at pages 24, 36). He further testified that he inspected the entire store approximately three times per day, including the check-out counters and conveyor belts (Id. at pages 9 and 13), filled out a compliance form and sent the form into the district office every Monday (Id. at pages 9-10). On the day in question he did not notice any problems with check-out counter # 8 on his two inspections preceding the accident which took place at approximately 4:30 P.M. (Id. at page 14). In support of their motion for summary judgment, plaintiffs complain that the compliance form for the week including the incident herein was never produced. Instead a blank form has been produced. No explanation for the absence of the completed form in question has been presented. The defendant's mechanic replaced the missing panel, which required screws, the following day. Plaintiffs state that the cashier at register # 8 has yet to be located at the address given for her.

Where, as here, the victim plaintiff is unable to testify, the plaintiff is not bound to the same standards of proof required of an injured party who can do so. (Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744; see Stein v. Palisi, 308 N.Y. 293, 297, 125 N.E.2d 575.) In such a case where circumstantial evidence is presented, it is enough that plaintiff shows facts and conditions from which the negligence of the defendant may be reasonably inferred. (Brito v. Manhattan and Bronx Surface Transit Operating Authority, 188 A.D.2d 253, 254, 590 N.Y.S.2d 450, lv. app. grtd. 189 A.D.2d 1093, 592 N.Y.S.2d 967, app. dsmd. 81 N.Y.2d 993, 599 N.Y.S.2d 798, 616 N.E.2d 153.) For the record, a three year old is incapable of contributory negligence as a matter of law (Galvin v. Cosico, 90 A.D.2d 656, 456 N.Y.S.2d 259; Meyer v. Inguaggiato, 258 App.Div. 331, 16 N.Y.S.2d 672, lv. app. den. 258 App.Div. 1055, 17 N.Y.S.2d 1021), and any negligence of a parent in supervising a child may not be imputed to the child. (General Obligations Law § 3-111; Barraza v. 55 West 47th St. Co., 144 A.D.2d 296, 534 N.Y.S.2d 175, on subsequent appeal 156 A.D.2d 271, 548 N.Y.S.2d 660.) Furthermore, a conveyor belt is a potentially dangerous instrumentality where children are concerned. (See Lathem v. Double E of Yonkers, Inc., 53 A.D.2d 921, 385 N.Y.S.2d 810.)

While plaintiff must generally show that defendant had actual or constructive notice of the condition which caused plaintiff's injury (Kane v. Human Services Center Incorporated, 186 A.D.2d 539, 588 N.Y.S.2d 361, lv. app. den. 82 N.Y.2d 657, 604 N.Y.S.2d 47, 624 N.E.2d 177), here plaintiffs' attempts to obtain such proof have been thoroughly thwarted. Without the missing panel itself, names and statements of witnesses, and at the very least the store manager's compliance form for the date of the incident and the days immediately preceding it, the infant plaintiff has little hope of establishing notice. However, an unfavorable inference may be drawn when a party fails to produce evidence which is within his control and which it is naturally expected to produce. (Ausch v. St. Paul Fire & Mar. Ins. Co., 125 A.D.2d 43, 48, 511 N.Y.S.2d 919, app. den. 70 N.Y.2d 610, 522 N.Y.S.2d 110, 516 N.E.2d 1223; Gruntz v. Deepdale General...