MAJSTOROVIC v. MARKET (2023)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about June 14, 2022, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The conflicting testimony as to how the accident occurred raised issues of fact and credibility, precluding a grant of summary judgment (see Evans v. Acosta, 169 AD3d 438, 439 [1st Dept 2019];  Rawls v. Simon, 157 AD3d 418, 418–419 [1st Dept 2018]).  While defendants’ store manager testified that the metal panel of the ice machine fell on plaintiff as she was unscrewing it to inspect the machine, plaintiff testified that the panel was already opened or unsecured when she arrived and that it suddenly came off and fell on her as she was performing the inspection.  This conflicting evidence raised questions of fact as to whether defendants created the hazardous condition or had notice of it.