| Carbone v Lakeside Mkt. Deli & Pizza, Inc. |
| 2008 NY Slip Op 00441 [47 AD3d 744] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Diana Carbone, Appellant, v Lakeside Market Deli &Pizza, Inc., Respondent. |
—[*1] Penino & Moynihan, LLP, White Plains, N.Y. (Audrey D. Zwolski and Heather Wallace ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Putnam County (O'Rourke, J.), dated February 15, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
Contrary to the defendant's contention and the determination of the Supreme Court, thedefendant failed to sustain its burden of making a prima facie showing of entitlement tojudgment as a matter of law by tendering sufficient evidence to demonstrate the absence of anymaterial issue of fact (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). While the defendantproduced, inter alia, the affidavit of a witness indicating that there was no defect in the runner itinstalled over its exterior steps, the defendant also submitted the plaintiff's deposition testimony,which contradicted that affidavit and raised factual issues regarding whether the defendantinadequately secured the runner, and thereby created a dangerous condition which caused her tofall. Accordingly, the defendant's submissions on the motion did not demonstrate that it wasentitled to summary judgment, and denial of the motion therefore was required (see generallyAlvarez v Prospect Hosp., 68 NY2d 320 [1986]; Brown v Outback Steakhouse, 39 AD3d 450 [2007]; Korina v New York City Tr. Auth., 37AD3d 765 [2007]; Ogletree v RushRealty Assoc., LLC, 29 AD3d 875 [2006]; Enamorado v KHR Holding Co., LLC, 24 AD3d 411 [2005];[*2]Redfern v 1552-75-82 President St. Realty Corp., 296AD2d 391 [2002]). Prudenti, P.J., Mastro, Santucci and Lifson, JJ., concur.