GMEINDER v. American Paving and Excavating Co., Inc., Appellant. (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Betty A. GMEINDER and Edward W. Gmeinder, Respondents, v. BENDERSON DEVELOPMENT CO., INC., Respondent, American Paving and Excavating Co., Inc., Appellant.

Decided: February 10, 1999

PRESENT: DENMAN, P.J., GREEN, PINE, HAYES and CALLAHAN, JJ.

Law Office of Roy A. Mura by Earl K. Cantwell, Buffalo, for Defendant-Appellant. Grossman, Levine & Civiletto (Eric B. Grossman, of counsel), Niagara Falls, for Plaintiffs-Respondents. Kenney, Kanaley, Shelton & Liptak by Thomas Cunningham, Buffalo, for Defendant-Respondent.

Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Betty A. Gmeinder (plaintiff) when she tripped and fell on a sidewalk as she was leaving a store in a plaza owned by defendant Benderson Development Co., Inc. (Benderson). Six months prior to the accident, Benderson had contracted with defendant American Paving and Excavating Co., Inc. (American) to repair the sidewalk in the area where plaintiff fell. American appeals from an order denying its motion for summary judgment dismissing the complaint and cross claims against it.

American failed to sustain its initial burden to demonstrate its entitlement to judgment as a matter of law (see, Hirsh v. Bert's Bikes & Sports, 227 A.D.2d 956, 957, 643 N.Y.S.2d 294; Eisenhart v. The Marketplace, 176 A.D.2d 1220, 576 N.Y.S.2d 713). American's submissions in support of the motion did not refute the allegation that American performed the repairs negligently and in a manner likely to create a risk of injury to customers leaving the store.

Order unanimously affirmed with costs.

MEMORANDUM:

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