OVERTON v. LEISURE TIME RECREATION INC

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

Daryll OVERTON, et al., Respondents, v. LEISURE TIME RECREATION, INC., Appellant.

Decided: February 26, 2001

LAWRENCE J. BRACKEN, Acting P.J., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Squires, Cordrey & Noble, New York, N.Y. (Vincent A. Albunio of counsel), for appellant. Eisenberg Margolis Friedman & Moses, New York, N.Y. (I. Bryce Moses and Steven B. Dorfman of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Kings County (Garson, J.), entered May 3, 2000, as denied its motion for summary judgment dismissing the complaint.

ORDERED the order is affirmed, with costs.

The plaintiff Daryll Overton was injured at the defendant's bowling alley.   At a pretrial deposition, he testified that his foot slipped out from underneath him as he took his first practice throw.   At the approximate time of the accident, the bowling alley mechanic was in the process of oiling the bowling lanes.   There is also evidence that could support the conclusion that there were footprint-shaped oil spots in the vicinity of the accident.

In response to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiffs raised material issues of fact.   These include whether the oil spots were present at the time of the accident, whether one of the defendant's employees created that condition, and whether it was in fact that condition which caused the injured plaintiff to slip and fall.   The Supreme Court properly denied the motion for summary judgment (cf., Lathan v. NCAS Realty Mgt. Corp., 240 A.D.2d 474, 658 N.Y.S.2d 436).

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