Dziengielewski v. Tops Markets, LLC

Appellate Division of the Supreme Court of New York

Dziengielewski v. Tops Markets, LLC

66 A.D.3d 1517, 885 N.Y.S.2d 922

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

DecidedOctober 9, 2009

StatusPublished

This text of 66 A.D.3d 1517 (Dziengielewski v. Tops Markets, LLC) 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

Dziengielewski v. Tops Markets, LLC, 66 A.D.3d 1517, 885 N.Y.S.2d 922 (N.Y. Ct. App. 2009).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered December 11, 2008 in a personal injury action. The order granted the motion of defendant for summary judgment dismissing the amended complaint.

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

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained while using a handleless cart to move two large barrels of animal refuse in defendant’s receiving area. We agree with plaintiff that Supreme Court erred in granting defendant’s motion for summary judgment dismissing the amended complaint. Defendant failed to establish its entitlement to summary judgment as a matter of law, inasmuch as its submissions in support of its motion raised an issue of fact whether defendant had undertaken the duty of providing the means by which plaintiff was to move the barrels from the receiving area (see Anderson v Bush Indus., 280 AD2d 949, 950 [2001]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, EJ., Martoche, Peradotto, Garni and Gorski, JJ.

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Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered December 11, 2008 in a personal injury action. The order granted the motion of defendant for summary judgment dismissing the amended complaint.

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

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained while using a handleless cart to move two large barrels of animal refuse in defendant’s receiving area. We agree with plaintiff that Supreme Court erred in granting defendant’s motion for summary judgment dismissing the amended complaint. Defendant failed to establish its entitlement to summary judgment as a matter of law, inasmuch as its submissions in support of its motion raised an issue of fact whether defendant had undertaken the duty of providing the means by which plaintiff was to move the barrels from the receiving area (see Anderson v Bush Indus., 280 AD2d 949, 950 [2001]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, EJ., Martoche, Peradotto, Garni and Gorski, JJ.

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Bluebook (online)

66 A.D.3d 1517, 885 N.Y.S.2d 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dziengielewski-v-tops-markets-llc-nyappdiv-2009.

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