Kajfasz v. Wal-Mart Stores, Inc.

Nov 9, 2001
Versions:288 A.D.2d 902
732 N.Y.S.2d 494
2001 N.Y. App. Div. LEXIS 10554

—Order unanimously affirmed with costs. Memorandum: Defendants contend that Supreme Court erred in denying their motion for summary judgment dismissing the complaint because plaintiffs’ allegation that a DA-inch height differential caused plaintiff Stella Kajfasz to trip and fall in the entranceway to defendants’ store is supported only by speculation. We disagree. Defendants could not establish their entitlement to judgment as a matter of law merely by pointing to alleged gaps in plaintiffs’ proof (see, Frank v Price Chopper Operating Co., 275 AD2d 940, 941; DeFazio v Hage, 272 AD2d 964; Orcutt v American Linen Supply Co., 212 AD2d 979, 980), and defendants failed to sustain their burden on the motion to demonstrate their freedom from negligence or the lack of any causal connection between the alleged defect and injury (see generally, Herman v Town of Clarence, 256 AD2d 1229, 1230; Smith v Key Bank, 206 AD2d 848, 849). In any event, plaintiffs raised triable issues of fact to defeat the motion (see, Foreman v Coyne Textile Servs., 284 AD2d .912; Herrera v City of New York, 262 AD2d 120), including “whether the alleged defect had the characteristics of a trap, snare or nuisance” (Pagano v Rite-Aid Corp., 266 AD2d 854, 855, citing Tesak v Marine Midland Bank, 254 AD2d 717, 718). (Appeal from Order of Supreme Court, Niagara County, Fricano, J. — Summary Judgment.) Present — Green, J. P., Hayes, Scudder, Kehoe and Burns, JJ.