Tuttle v. Coach Nail Salon, Inc.

29 A.D.3d 981, 815 N.Y.S.2d 476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated January 9, 2006, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff alleged that she contracted the herpes simplex virus during an eyebrow waxing procedure that was performed at the defendant’s premises. She commenced the instant action to recover damages for her alleged injuries. The defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the defendant’s motion.

In support of its motion for summary judgment dismissing the complaint, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Triable issues of fact exist, inter alia, as to whether the plaintiff became afflicted with the virus during the eyebrow waxing (cf. Rossoto v Vadher, 220 AD2d 569, 570 [1995]). Accordingly, the Supreme Court properly denied the defendant’s motion. Crane, J.P., Rivera, Skelos and Dillon, JJ., concur.