| Dietzen v Aldi Inc. (New York) |
| 2008 NY Slip Op 10423 [57 AD3d 1514] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Susan Dietzen et al., Appellants, v Aldi Inc. (New York),Respondent. |
—[*1] Colucci & Gallaher, P.C., Buffalo (Regina A. Delvecchio of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.),entered February 8, 2008 in a personal injury action. The order granted the motion of defendant forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by SusanDietzen (plaintiff) when she tripped and fell over a wooden pallet in a store owned by defendant. Weconclude that Supreme Court erred in granting defendant's motion for summary judgment dismissing thecomplaint. Even assuming, arguendo, that defendant met its initial burden of establishing entitlement tosummary judgment, we conclude that plaintiffs raised triable issues of fact sufficient to defeat the motion(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Although thereare some inconsistencies between the affidavits submitted by plaintiffs in opposition to the motion andplaintiff's prior deposition testimony, we reject defendant's contention under the circumstances of thiscase that those affidavits are an attempt to raise feigned issues of fact (cf. Martin v Savage, 299AD2d 903 [2002]). Any such inconsistencies present credibility issues to be resolved at trial(see Knepka v Tallman, 278 AD2d 811 [2000]; see also Schoen v Rochester Gas &Elec., 242 AD2d 928 [1997]). Contrary to defendant's further contention, there is an issue of factwhether the wooden pallet protruded into the aisle of the store, creating a dangerous condition (seeGrizzanto v Golub Corp., 188 AD2d 1015 [1992]). Although defendant contends that the locationof the wooden pallet was open and obvious, we nevertheless conclude that defendant was not relievedof its obligation to keep the property in a safe condition (see Moloney v Wal-Mart Stores, 2AD3d 508, 510 [2003]; Monge v Home Depot, 307 AD2d 501, 502 [2003]; Patterson vTroyer Potato Prods., 273 AD2d 865 [2000]; cf. Morgan v TJX Cos., Inc., 38 AD3d 508 [2007]).Present—Martoche, J.P., Smith, Centra, Green and Pine, JJ.