Johnson v. Lancet 150 Nassau LP

617 N.Y.S.2d 743 | N.Y. App. Div. | 1994

Order, Supreme Court, New York County (Carol H. Arber, J.), entered on or about January 6, 1994, which denied defendant-appellant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Material issues of fact concerning the nature of appellant’s duties as a cleaning service and the proper performance thereof were raised in appellant’s own evidentiary submissions in support of the motion, including plaintiff’s sworn testimony that a defect on the step on which she fell was concealed by dirt, appellant’s employee’s testimony that appellant did not clean the stairs, and contract documents indicating that appellant was supposed to clean the stairs. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case * * *. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Concur—Murphy, P. J., Carro, Ellerin, Wallach and Kupferman, JJ.