Garcia v. Best Value Discount Corp.

67 A.D.3d 480, 890 N.Y.S.2d 467

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 2009
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered February 4, 2009, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish its prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when she tripped and fell over a open box of fluorescent light bulbs that was on the floor of defendant’s store. There are triable issues of fact concerning whether defendant violated its duty to maintain its premises in a reasonably safe condition (see Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 72-76 [2004]; Caicedo v Cheven Keeley & Hatzis, 59 AD3d 363 [2009]). Plaintiff testified that on the day of the accident, there were numerous boxes piled on top of one another in an area generally traversed by customers, which a jury might reasonably find constituted an unsafe condition.

Because defendant failed to meet its prima facie burden on its motion, we need not address its argument that the court should not have considered plaintiffs opposition papers because they were untimely. Concur—Tom, J.E, Friedman, Nardelli, Buckley and Richter, JJ.