DeLorm v. Wegmans Food Markets, Inc.

185 A.D.2d 648

Opinion

— Order unanimously affirmed with costs. Memorandum: Upon renewal and reargument, Supreme Court properly denied defendant’s motion for summary judgment seeking dismissal of plaintiff’s complaint. Plaintiff fell over a raised brick located in an area inside a fence line that separated the City’s sidewalk from defendant’s parking lot. After plaintiff fell, defendant repaved its parking lot as well as the area where the brick had been. Defendant’s repaving of the area within the line of the fence created a question of fact whether defendant possessed and controlled that area, even though a survey showed that the area lies within the City’s street.

The court properly denied defendant’s motion to amend its answer to qualify its admission that it possessed and controlled the parking lot because the amendment is unnecessary. In its answer, defendant did not admit the allegation in the complaint that plaintiff fell in the parking lot. Upon trial, therefore, defendant may attempt to show, as a matter of fact, that the area where plaintiff fell was not part of its parking lot. (Appeal from Order of Supreme Court, Monroe County, Willis, J. — Renew Summary Judgment.) Present — Callahan, J. P., Boomer, Green, Fallon and Davis, JJ.