Lee v. Burger King

59 A.D.3d 280, 873 N.Y.S.2d 303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 2009
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 10, 2008, which denied the motion of defendants 101 East 161st Street Restaurant Corp. and 101 Restaurant Corp. and the cross motion of Burger King, Burger King Corp. and Walton Foods Enterprises, L.L.C. for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants did not demonstrate their entitlement to summary judgment, since their conflicting evidence failed to establish their lack of responsibility for the alleged hazardous grease condition on the public sidewalk and since their argument that other possible sources for the condition existed was properly rejected (see Bowry v Uptown Gift Shop, 292 AD2d 240 [2002]). In any event, plaintiff raised triable issues of fact with evidence from which a jury could infer that one, or more, of defendants created the alleged hazardous condition (see Vazquez v Santana, 291 AD2d 230 [2002]). Concur—Tom, J.P., Moskowitz, Acosta and Freedman, JJ.