Reset A A Font size: Print

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

Susan DIETZEN and Lawrence Dietzen, Plaintiffs-Appellants, v. ALDI INC. (NEW YORK), Defendant-Respondent.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ. Miserendino, Celniker, Seegert & Estoff, P.C., Buffalo (Walter P. Seegert of Counsel), for Plaintiffs-Appellants. Colucci & Gallaher, P.C., Buffalo (Regina A. Delvecchio of Counsel), for Defendant-Respondent.

 Plaintiffs commenced this action seeking damages for injuries sustained by Susan Dietzen (plaintiff) when she tripped and fell over a wooden pallet in a store owned by defendant.   We conclude that Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint.   Even assuming, arguendo, that defendant met its initial burden of establishing entitlement to summary judgment, we conclude that plaintiffs raised triable issues of fact sufficient to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Although there are some inconsistencies between the affidavits submitted by plaintiffs in opposition to the motion and plaintiff's prior deposition testimony, we reject defendant's contention under the circumstances of this case that those affidavits are an attempt to raise feigned issues of fact (cf. Martin v. Savage, 299 A.D.2d 903, 750 N.Y.S.2d 684).   Any such inconsistencies present credibility issues to be resolved at trial (see Knepka v. Tallman, 278 A.D.2d 811, 718 N.Y.S.2d 541;  see also Schoen v. Rochester Gas & Elec., 242 A.D.2d 928, 665 N.Y.S.2d 372).   Contrary to defendant's further contention, there is an issue of fact whether the wooden pallet protruded into the aisle of the store, creating a dangerous condition (see Grizzanto v. Golub Corp., 188 A.D.2d 1015, 592 N.Y.S.2d 163).   Although defendant contends that the location of the wooden pallet was open and obvious, we nevertheless conclude that defendant was not relieved of its obligation to keep the property in a safe condition (see Moloney v. Wal-Mart Stores, Inc., 2 A.D.3d 508, 510, 767 N.Y.S.2d 897;  Monge v. Home Depot, 307 A.D.2d 501, 502, 761 N.Y.S.2d 886;  Patterson v. Troyer Potato Prods., 273 A.D.2d 865, 709 N.Y.S.2d 731;  cf. Morgan v. TJX Cos., Inc., 38 A.D.3d 508, 831 N.Y.S.2d 482).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.