Banegas v. Unique Gas Corp.

Appellate Division of the Supreme Court of New York

Banegas v. Unique Gas Corp.

100 A.D.3d 498, 954 N.Y.S.2d 59

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 2012

StatusPublished

This text of 100 A.D.3d 498 (Banegas v. Unique Gas Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Banegas v. Unique Gas Corp., 100 A.D.3d 498, 954 N.Y.S.2d 59 (N.Y. Ct. App. 2012).

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Opinion

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered December 6, 2011, which denied defendant’s motion for [499]*499summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish its entitlement to judgment as a matter of law in this action where plaintiff was allegedly injured when she slipped on ice on the driveway of defendant’s gas station. Plaintiff testified that she slipped on the driveway where cars entered and exited the station. When presented with photographs at her deposition and asked to mark the location of her fall, plaintiff marked a spot in the street that was not part of defendant’s premises. However, on the correction sheet to her deposition testimony, which predated defendant’s motion, plaintiff clarified that she had marked the area where she landed after slipping on the driveway. Moreover, defendant’s employee and the police officer who responded to the scene testified that while they saw plaintiff sitting in the roadway after the accident, they did not see her fall. Accordingly, defendant failed to conclusively demonstrate that plaintiff’s fall was not on its premises.

Defendant’s argument that its snow removal efforts were adequate was not raised in its motion papers, and is therefore unpreserved (see e.g. Crawford v Windmere Corp., 262 AD2d 268, 269 [2d Dept 1999]). Concur — Friedman, J.P, Sweeny, Moskowitz, Freedman and Román, JJ.

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Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered December 6, 2011, which denied defendant’s motion for [499]*499summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish its entitlement to judgment as a matter of law in this action where plaintiff was allegedly injured when she slipped on ice on the driveway of defendant’s gas station. Plaintiff testified that she slipped on the driveway where cars entered and exited the station. When presented with photographs at her deposition and asked to mark the location of her fall, plaintiff marked a spot in the street that was not part of defendant’s premises. However, on the correction sheet to her deposition testimony, which predated defendant’s motion, plaintiff clarified that she had marked the area where she landed after slipping on the driveway. Moreover, defendant’s employee and the police officer who responded to the scene testified that while they saw plaintiff sitting in the roadway after the accident, they did not see her fall. Accordingly, defendant failed to conclusively demonstrate that plaintiff’s fall was not on its premises.

Defendant’s argument that its snow removal efforts were adequate was not raised in its motion papers, and is therefore unpreserved (see e.g. Crawford v Windmere Corp., 262 AD2d 268, 269 [2d Dept 1999]). Concur — Friedman, J.P, Sweeny, Moskowitz, Freedman and Román, JJ.

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Bluebook (online)

100 A.D.3d 498, 954 N.Y.S.2d 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banegas-v-unique-gas-corp-nyappdiv-2012.

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