Hit by Falling Merchandise or a Store Display in New York? What You Must Prove

On September 16, 2026, the Second Department affirmed the dismissal of a supermarket case in which soda bottles fell from a display and struck a shopper who was taking a bottle from it. The decision, Abdelrahman v Stop & Shop Supermarket Co., LLC, is short. It still shows where most falling merchandise cases are won or lost: on proof that the display was dangerous, and on an expert who can say why.

Take an invented example. A shopper in a Hicksville home goods store reaches for a lamp on a middle shelf. A carton stacked on the top shelf, well above anyone’s reach, slides off and strikes the shopper’s shoulder. Our post on proving a premises liability case in New York covers falls on floors and stairs; this one covers the case where the store’s stock comes down on you.

What the Second Department decided in Abdelrahman

The case came up from the Supreme Court, Kings County. In the court’s words, “while retrieving a bottle of soda from a store display created by the defendant Coca-Cola Refreshments USA, Inc.,” other bottles “fell from the display and struck the plaintiff.” He sued Stop & Shop, a second defendant named Cross Path Rlty, and Coca-Cola. The Supreme Court granted each defendant summary judgment, and the Second Department affirmed.

The ruling turned on the condition itself. The defendants “established their prima facie entitlement to judgment as a matter of law … by demonstrating that no dangerous condition existed.” The plaintiff’s safety expert did not change that: the affidavit “was speculative and insufficient to defeat summary judgment.”

The decision does not hold that a store is never liable when a display gives way; on this record nobody showed what was wrong with it. Consequently, the first job in your case is to find out, and keep the proof, before the display is restocked.

What you have to prove when merchandise falls on you

In Ingram v Costco Wholesale Corp. (2014), a case of iced tea fell on a shopper as he went to take it from a display he called dangerously high. The court wrote that “the plaintiff must establish the existence of a defective condition and that the defendant either created or had actual or constructive notice of the defect.” Costco showed there was no dangerous condition, and the complaint was dismissed.

There are three ways to meet that rule. The store created the condition when its own employees stacked, overloaded or set up the display. It had actual notice when someone told it about the problem, or an employee saw it, before the item fell. Constructive notice is the third: the condition “must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, as quoted in Eksarko v Associated Supermarket, 2d Dept 2017).

Constructive notice is where the store’s records matter. A store moving for summary judgment “must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell,” and “reference to general cleaning practices is insufficient.” In Eksarko the store’s manager offered only general cleaning practices, and the store lost its motion.

The other side of that coin is Fontanelli v Price Chopper Operating Co. (3d Dept 2011). Three gallon water bottles fell from a top shelf onto a shopper, who testified that the bottles had been hanging over the edge. A manager had inspected the area five minutes before. The shopper’s testimony established “only that the bottles were placed on the shelf by someone in an unsafe manner”; the claim that the store necessarily did it was “wholly speculative,” and a customer was equally likely to have done it.

Write down where the item was, how it was stacked, whether it was within reach, and which employees were nearby, while you remember it.

Res ipsa loquitur and the exclusive control problem

Sometimes nobody can say why the item fell. Res ipsa loquitur lets a jury infer negligence from the event itself, and the Court of Appeals calls it “nothing more than a brand of circumstantial evidence” (Morejon v Rais Construction Co., 2006). The Court restated the three conditions from Corcoran v Banner Super Market (1967): “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”

In a self-service store, the second condition is the fight. Exclusivity “does not mean that ‘the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant’s door’” (Durso v Wal-Mart Stores, 4th Dept 2000, quoting Dermatossian). The cases below show where the courts have drawn that line.

Res ipsa does not have to be pleaded by name: in Ciciarelli the plaintiff “did not plead res ipsa loquitur,” and the charge was still proper, and in O’Connor v Circuit City Stores (2d Dept 2005) the plaintiff should have been allowed to add it by a supplemental bill of particulars. It usually gets you to a jury, not past one.

Who can be sued: the store, the landlord and the display vendor

A falling display can bring in three defendants. The store runs the aisle. The landlord owns the building. A vendor may have built the display, as Coca-Cola did in Abdelrahman. In Meegan, the claim against the property owner was dismissed because it was “merely an out-of-possession landowner” and the store “was solely responsible for the maintenance and repair” of its retail operations and equipment.

You sue everybody. You sue the store that runs the aisle, you sue the landlord if it kept control of the building and you sue the company that built the display if a vendor put it there. The store is on the hook if they created the condition, if they knew about it or should have known about it, which means it was there for so long that they should have found it and fixed it. A landlord that gave up control of the building and left the store responsible for its own shelves and equipment generally gets out.

Consequently, the lease and any vendor display agreement are among the first documents a lawyer asks for. They show who stocked the display and who was supposed to inspect it.

Expert proof: what a safety affidavit has to do

Experts decide many of these motions. In Devoe v Nostrand II Meat Corp. (2d Dept 2023), an entryway case, the store’s expert showed that the door and saddle were not defective, and the plaintiff’s expert relied on industry standards that were “inapplicable to the entryway of the store.” The case was dismissed.

An affidavit that says a display was “unsafe” or “too high” is a conclusion. What survives is an opinion tied to the actual display: its height, how it was loaded, what held the stock in place, the store’s or vendor’s own stocking rules and how they were broken, all built from photographs, the store’s records and testimony. Consequently, the expert should work from the photographs and the stocking records. An opinion built on the plaintiff’s description alone risks the word the court used in Abdelrahman: speculative.

When you were reaching for the item yourself

Many of these cases begin with the shopper’s own hand on the merchandise. In Abdelrahman the bottles fell while the plaintiff was retrieving one. In Ingram the shopper was going for the case that fell. The third res ipsa condition asks whether the accident was due to “any voluntary action or contribution on the part of the plaintiff.”

So tell your lawyer exactly what you touched and if the item fell because you pulled on it that is going to come up since res ipsa requires that the accident was not caused by anything that you did. That does not end the case though, because under CPLR 1411, your share of fault doesn’t bar recovery; it reduces the damages by your percentage.

The statute is direct: the claimant’s culpable conduct “shall not bar recovery,” and damages are “diminished in the proportion” that conduct bears to the conduct that caused the damages. The 2026 rule barring a plaintiff who is mostly at fault, CPLR 1411(b), applies only to actions “subject to article fifty-one of the insurance law,” the motor vehicle insurance article. A shopper hurt in a store is under the comparative fault rule of CPLR 1411(a).

Preserve the video before it records over itself

On September 16, 2026, the same day as Abdelrahman, the Second Department decided Alvarez v 100-10 67th Rd. Condominium, a stairway fall in an apartment building whose cameras “captured three weeks of video before being automatically overwritten.” The plaintiff’s lawyer sent a preservation letter less than two weeks after the fall. The building produced only a 67-second cell phone recording of the moments after the fall.

The court held that the owners “had an obligation to preserve the subject surveillance videos and were at least negligent in failing to preserve them.” A party seeking sanctions must show an obligation to preserve when the evidence was destroyed, “a culpable state of mind,” and relevance to the claim. The trial court had barred the owners from offering any defense on liability; the Second Department changed that to an adverse inference charge at trial. Eksarko came out the same way for a supermarket that lost its video when a store computer was damaged during renovations.

The first thing that you do is you write a letter to the store telling them to preserve the video. You need to do this immediately in writing. A lot of these camera systems keep a few weeks of footage and then they just start recording over it automatically, so if you don’t write a letter, the video may disappear. If the video disappears, especially after the store gets your letter, then a court can sanction them, and the usual sanction is an adverse inference. So what that means is that the jury is told that it can assume that the video would not have helped the store.

The timeline below sets out what to do and when.

Back to the shopper in Hicksville

The shopper reached for a lamp, not the carton, and the carton sat above anyone’s reach. The store will say another customer moved it; the answer is the height, whether the top shelf held overstock for employees, and whether customers had a ladder. That is the Fields and Durso pattern, and it can put res ipsa in front of a jury. The shopper should still prove notice the ordinary way, with the inspection records, the photographs and the video the store was asked to keep. If the reach jostled the shelf, that goes to the shopper’s percentage. The clock is three years.

Our premises liability practice explains how these cases are built, and our page on injuries at a Home Depot covers the warehouse-store version with overhead racking.

Sources

• Abdelrahman v Stop & Shop Supermarket Co., LLC, 2026 NY Slip Op 05259 (2d Dept September 16, 2026)
• Alvarez v 100-10 67th Rd. Condominium, 2026 NY Slip Op 05261 (2d Dept September 16, 2026)
• Devoe v Nostrand II Meat Corp., 216 AD3d 738 (2d Dept 2023)
• Eksarko v Associated Supermarket, 155 AD3d 826 (2d Dept 2017)
• Ingram v Costco Wholesale Corp., 117 AD3d 685 (2d Dept 2014)
• Fields v King Kullen Grocery Co., 28 AD3d 513 (2d Dept 2006)
• O’Connor v Circuit City Stores, Inc., 14 AD3d 676 (2d Dept 2005)
• Meegan v Westbury Prop. Inv. Co., 234 AD2d 433 (2d Dept 1996)
• Fontanelli v Price Chopper Operating Co., 89 AD3d 1176 (3d Dept 2011)
• Durso v Wal-Mart Stores, 270 AD2d 877 (4th Dept 2000)
• Ciciarelli v Ames Dept. Stores, 162 AD2d 996 (4th Dept 1990)
• Morejon v Rais Construction Co., 7 NY3d 203 (2006)
• Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543 (2015)
• CPLR 214, CPLR 1411 and CPLR 3126

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If merchandise or a display fell on you in a store on Long Island, call (516) 750-0595 with your photographs of the display and the store’s incident report number, or request a free case review.