Opinion
2013-03-21
Eduvigis FURMENT, Plaintiff–Appellant, v. ZIAD FOOD CORP., et al., Defendants–Respondents.
Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for appellant. Sobel Law Group, LLC, Huntington (Cheryl Spinner Kravatz of counsel), for respondents.
Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for appellant. Sobel Law Group, LLC, Huntington (Cheryl Spinner Kravatz of counsel), for respondents.
, J.P., Acosta, Román, Feinman, Clark, JJ.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered April 2, 2012, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Defendants failed to establish their entitlement to judgment as a matter of law in this action where plaintiff alleges that she fell over a produce box that was placed next to her in a supermarket aisle while she was bending over to retrieve a product. As the movants, defendants bore the burden of disproving an essential element of plaintiff's claims and cannot affirmatively establish the absence of negligence as a matter of law merely by pointing out the gaps they perceive in plaintiff's case ( see Dabbagh v. Newmark Knight Frank Global Mgt. Servs., LLC, 99 A.D.3d 448, 450, 952 N.Y.S.2d 118 [1st Dept. 2012] ).
Furthermore, the record demonstrates that there are triable issues with respect to whether the box that plaintiff fell over was an open and obvious condition and whether it was inherently dangerous. Such issues are typically not disposable by summary adjudication ( see Burgos v. 205 E.D. Food Corp., 61 A.D.3d 403, 876 N.Y.S.2d 381 [1st Dept. 2009];Centeno v. Regine's Originals, 5 A.D.3d 210, 773 N.Y.S.2d 62 [1st Dept. 2004];Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 75, 773 N.Y.S.2d 38 [1st Dept. 2004] ), and here, the motion court improperly disregarded plaintiff's account of her accident ( see generally Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997] [“(i)t is not the court's function on a motion for summary judgment to assess credibility”] ).