In Scalia v King Kullen Grocery Co., Inc., plaintiff, Kimberly Scalia, claimed she was injured when she fell while pushing a shopping cart along a sidewalk toward a grocery store operated by defendant, King Kullen Grocery Co., Inc. King Kullen had leased the store abutting the sidewalk where the accident occurred from Serota Northport, LLC, which owned the property.

During her deposition, Scalia testified that the left front wheel of the shopping cart she was using was wobbly and that, when that wheel came into contact with a crack in the sidewalk in front of the King Kullen store, the cart stopped abruptly, causing her to fall to the ground.

The defendants both moved for summary judgment and lost. The Court asserted that neither Serota nor King Kullen established their prima facie entitlement to judgment--- which would have dismissed the plaintiff’s complaint--- as a matter of law.

On appeal, the Appellate Division, Second Department affirmed the lower court’s decision and held that neither Serota nor King Kullen demonstrated that the injured plaintiff was unable to identify the cause of her accident. Moreover, Serota could not establish that the sidewalk crack, which the plaintiff identified in a series of photographs, was trivial. Although King Kullen demonstrated that it did not create or have actual notice of any defect or dangerous condition of the shopping cart, it failed to indicate a lack of constructive notice of the shopping cart’s alleged condition. Indeed, the assistant store manager’s deposition testimony could not establish when---relative to the time of the accident---any of King Kullen’s shopping carts were last inspected.