Aguirre v. Paul
Decision Date | 05 August 2008 |
Docket Number | No. 2007-06693.,2007-06693. |
Citation | 54 A.D.3d 302,862 N.Y.S.2d 580,2008 NY Slip Op 6541 |
Parties | MARIA ELENA AGUIRRE et al., Respondents-Appellants, v. LAWRENCE PAUL et al., Appellants-Respondents. |
Court | New York Supreme Court — Appellate Division |
In this personal injury action, the plaintiff Maria Elena Aguirre (hereinafter the plaintiff) allegedly fell after tripping on a torn rubber mat in a pet store operated by Coral Aquariums, Inc. (hereinafter Coral). She and her husband commenced the instant action against Coral and its president and sole shareholder, Lawrence Paul. More than one year after the incident, Aguirre discarded the shoes she had been wearing when she fell. The Supreme Court denied those branches of the defendants' renewed motion which were for summary judgment dismissing the complaint or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against Paul in his individual capacity. The court granted that branch of the defendants' renewed motion which was to dismiss the complaint based on spoliation of evidence (Aguirre's shoes) to the extent of directing that an adverse inference charge be given at trial.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (Prusak v New York City Hous. Auth., 43 AD3d 1022, 1022 [2007]; see Lewis v Metropolitan Transp. Auth., 64 NY2d 670, 671 [1984]; Birthwright v Mid-City Sec., 268 AD2d 401 [2000]). In opposition to the defendants' prima facie showing of their entitlement to summary judgment dismissing the complaint, the plaintiffs raised triable issues of fact as to whether the premises were negligently maintained, whether there was a dangerous condition which caused the plaintiff to fall, and whether the defendants had notice of that dangerous condition. Accordingly, the Supreme Court properly denied that branch of the defendants' renewed motion which was for summary judgment dismissing the complaint.
The Supreme Court also properly denied that branch of the defendants' renewed motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Paul in his individual capacity. ...
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