Roger Williams v Giordano's Madison Market Basket, LLC

Williams v Giordano's Madison Mkt. Basket, LLC 2006 NY Slip Op 04830 [30 AD3d 508] Decided on June 13, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
DANIEL F. LUCIANO
ROBERT A. SPOLZINO
STEVEN W. FISHER, JJ.
2005-05090 DECISION & ORDER

[*1]Roger Williams, etc., et al., respondents,

v

Giordano's Madison Market Basket, LLC, appellant, et al., defendant. (Index No. 6105/03)




Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &
Fishlinger (Max W. Gershweir, New York, N.Y. [Jennifer B. Ettenger]
of counsel), for appellant.
Grundfast & Higham, Stony Brook, N.Y. (John P. Higham of
counsel), for respondent.

In an action, inter alia, to recover damages for wrongful death, etc., Madison Market Basket, LLC, d/b/a Giordano's, s/h/a Giordano's Madison Market Basket, LLC, appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated May 11, 2005, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The appellant, in support of its motion for summary judgment dismissing the complaint insofar as asserted against it, made a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). The motion was properly denied, however, since the plaintiffs raised triable issues of fact concerning whether the alleged defect was a proximate cause of the decedent's fall and whether it was too trivial to be actionable (see Fairchild v J. Crew Group, 21 AD3d 523; Farrar v Teicholz, 173 AD2d 674).
FLORIO, J.P., LUCIANO, SPOLZINO and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court