| Cignarella v Anjoe-A.J. Mkt., Inc. |
| 2009 NY Slip Op 09377 [68 AD3d 560] |
| December 17, 2009 |
| Appellate Division, First Department |
| Adele Cignarella et al., Respondents, v Anjoe-A.J. Market,Inc., Doing Business as MET Foodmarkets, et al., Appellants. |
—[*1] Joseph A. Marra, Yonkers (Vincent P. Fiore of counsel), for respondents.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 14,2009, which denied defendants' motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Plaintiff allegedly sustained personal injuries in July 2005 when she tripped and fell at alocal supermarket. She alleged that her foot got caught in a plastic or nylon looped tie wrap, usedby defendants to secure newspapers, which was laying on the concrete sidewalk inside theshopping cart security barrier, immediately adjacent to the customer entrance. Plaintiff fell to theground, fractured her left shoulder, and tore her rotator cuff.
Based on deposition testimony that this debris was clearly visible at the time plaintiff fell,defendants have not established entitlement to summary judgment as a matter of law. Even ifroutine maintenance "procedures" were being followed on the date of the accident, simplywalking around the supermarket looking for hazardous conditions, without more, would notadequately establish precisely when the area of the accident was last inspected or cleaned (see Porco v Marshalls Dept. Stores, 30AD3d 284 [2006]; Deluna-Cole v Tonali, Inc., 303 AD2d 186 [2003]).
Even assuming that defendants cleaned or inspected the area on a regular basis prior to theaccident, plaintiffs established, through the testimony of their nonparty witness, a triable issue offact as to whether an ongoing and recurring dangerous condition existed in the area that wasroutinely left unaddressed by defendants. Under such circumstances, defendants' testimony thatif the sidewalk was dirty, the assistant store manager would send someone to clean it, "did no[*2]more than confirm the existence of a question of fact as to theongoing condition" of the entranceway (O'Connor-Miele v Barhite & Holzinger, 234AD2d 106, 107 [1996]). Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta andRomÁn, JJ.