        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1000
CA 11-00429
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, AND GORSKI, JJ.


PATRICK CROUGH, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BJ’S WHOLESALE CLUB, INC.,
DEFENDANT-APPELLANT.


MACKENZIE HUGHES LLP, SYRACUSE (JONATHAN H. BARD OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FITZSIMMONS, NUNN, FITZSIMMONS & PLUKAS, LLP, ROCHESTER (JASON E.
ABBOTT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered November 4, 2010 in a personal injury action. The
order denied the motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
an injury he sustained to his nose while attempting to load a heavy
box of merchandise into a pickup truck with the assistance of
defendant’s employee. Supreme Court denied defendant’s motion seeking
summary judgment dismissing the complaint. That was error.

     It is axiomatic that “a duty of reasonable care owed by a[n
alleged] tortfeasor to an injured party is elemental to any recovery
in negligence” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579,
584), and that “a duty may arise from negligent words or acts that
induce reliance” (Heard v City of New York, 82 NY2d 66, 71, rearg
denied 82 NY2d 889; see Kievman v Philip, 84 AD3d 1031, 1032). Here,
however, defendant established in support of its motion that the
voluntary action of its employee in agreeing to assist plaintiff did
not create a duty to plaintiff. Although plaintiff relied upon the
assistance of defendant’s employee to load the box of merchandise,
“the question is whether [the voluntary] conduct [of defendant’s
employee] placed plaintiff in a more vulnerable position than [he]
would have been had defendant[’s employee] done nothing” (Heard, 82
NY2d at 72). That is not the case here. It is undisputed that,
although plaintiff was accompanied by his wife and adult daughter, he
asked defendant’s employee to help him load the box, and the employee
agreed to do so. We therefore conclude that defendant established its
                                 -2-                          1000
                                                         CA 11-00429

entitlement to judgment as a matter of law inasmuch as the actions of
defendant’s employee “neither enhanced the risk [plaintiff] faced [in
loading the box], created a new risk nor induced [plaintiff] to forego
some opportunity to avoid risk” (id. at 73; see Malpeli v Yenna, 81
AD3d 607, 608-609; Van Hove v Baker Commodities, 288 AD2d 927). We
further conclude that plaintiff failed to raise a triable issue of
fact sufficient to defeat the motion (see generally Zuckerman v City
of New York, 49 NY2d 557, 562).




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
