RIVERA v. JANI KING OF NEW YORK INC (2009)

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

Robert RIVERA, appellant, v. JANI-KING OF NEW YORK, INC., respondent.

Decided: February 24, 2009

PETER B. SKELOS, J.P., MARK C. DILLON, DANIEL D. ANGIOLILLO, and RANDALL T. ENG, JJ.

Rodney S. Lapidus, P.C., Bohemia, N.Y., for appellant. Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated November 13, 2007, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff allegedly slipped and fell on black ice on the exterior ramp of his employer's premises. At the time of the accident, the defendant had a maintenance agreement with the plaintiff's employer to clean the premises. The plaintiff commenced this action against the defendant, contending that defendant's franchisee created the defect by pouring waste water onto the exterior ramp. The defendant moved for summary judgment dismissing the complaint contending, inter alia, that the deposition testimony of its franchisee demonstrated that it had not created the icy condition on the ramp. The Supreme Court granted the motion. We reverse.

There are issues of fact requiring the denial of summary judgment (see Healy v. ARP Cable, 299 A.D.2d 152, 154-155, 753 N.Y.S.2d 38).

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