SBASCHING v. GREAT ATLANTIC PACIFIC TEA CO (2001)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Gigante, J.), dated January 24, 2001, which granted the defendant's motion for summary judgment dismissing the complaint and denied her cross motion to strike the defendant's answer.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion and substituting therefor a provision denying the motion with leave to the defendant to renew the motion after further discovery;  as so modified, the order is affirmed, without costs or disbursements.

The defendant failed to appropriately respond to a discovery order by submitting information from a person with personal knowledge of the existing videotapes.   The videotapes which the plaintiff sought in discovery would be critical on the issue of whether the defendant had notice of the allegedly dangerous condition (cf., Stumacher v. Waldbaum, Inc., 274 A.D.2d 572, 716 N.Y.S.2d 573).   Summary judgment is not appropriate at this juncture (see, Brophy v. Metropolitan Life Ins. Co., 278 A.D.2d 351, 718 N.Y.S.2d 616;  Esposito v. Metropolitan Transp. Auth., 264 A.D.2d 370, 695 N.Y.S.2d 28;  Colicchio v. Port Auth. of N.Y. & N.J., 246 A.D.2d 464, 668 N.Y.S.2d 385).

The plaintiff's remaining contentions are without merit.