CARBONE v. LAKESIDE MARKET DELI PIZZA INC (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated February 15, 2007, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

Contrary to the defendant's contention and the determination of the Supreme Court, the defendant failed to sustain its burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   While the defendant produced, inter alia, the affidavit of a witness indicating that there was no defect in the runner it installed over its exterior steps, the defendant also submitted the plaintiff's deposition testimony, which contradicted that affidavit and raised factual issues regarding whether the defendant inadequately secured the runner, and thereby created a dangerous condition which caused her to fall.   Accordingly, the defendant's submissions on the motion did not demonstrate that it was entitled to summary judgment, and denial of the motion therefore was required (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Brown v. Outback Steakhouse, 39 A.D.3d 450, 833 N.Y.S.2d 222;  Korina v. New York City Tr. Auth., 37 A.D.3d 765, 832 N.Y.S.2d 217;  Ogletree v. Rush Realty Assoc., LLC, 29 A.D.3d 875, 814 N.Y.S.2d 878;  Enamorado v. KHR Holding Co., LLC, 24 A.D.3d 411, 805 N.Y.S.2d 114;  Redfern v. 1552-75-82 President St. Realty Corp., 296 A.D.2d 391, 745 N.Y.S.2d 450).