KAJFASZ v. WAL MART STORES INC (2001)

Defendants contend that Supreme Court erred in denying their motion for summary judgment dismissing the complaint because plaintiffs' allegation that a 1 1/212-inch height differential caused plaintiff Stella Kajfasz to trip and fall in the entranceway to defendants' store is supported only by speculation.   We disagree.   Defendants could not establish their entitlement to judgment as a matter of law merely by pointing to alleged gaps in plaintiffs' proof (see, Frank v. Price Chopper Operating Co., 275 A.D.2d 940, 941, 713 N.Y.S.2d 614;  DeFazio v. Hage, 272 A.D.2d 964, 708 N.Y.S.2d 657;  Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980, 623 N.Y.S.2d 457), and defendants failed to sustain their burden on the motion to demonstrate their freedom from negligence or the lack of any causal connection between the alleged defect and injury (see generally, Herman v. Town of Clarence, 256 A.D.2d 1229, 1230, 683 N.Y.S.2d 456;  Smith v. Key Bank of W.N.Y., 206 A.D.2d 848, 849, 614 N.Y.S.2d 849).   In any event, plaintiffs raised triable issues of fact to defeat the motion (see, Foreman v. Coyne Textile Servs. of Buffalo, 284 A.D.2d 912, 726 N.Y.S.2d 514;  Herrera v. City of New York, 262 A.D.2d 120, 691 N.Y.S.2d 504), including “whether the alleged defect had the characteristics of a trap, snare or nuisance” (Pagano v. Rite-Aid Corp., 266 A.D.2d 854, 855, 698 N.Y.S.2d 129, citing Tesak v. Marine Midland Bank, 254 A.D.2d 717, 718, 678 N.Y.S.2d 226).

Order unanimously affirmed with costs.

MEMORANDUM: