Garcia v Best Value Discount Corp.

Garcia v Best Value Discount Corp. 2009 NY Slip Op 08074 [67 AD3d 480] November 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Iris Garcia, Respondent,
v
Best Value Discount Corp., Appellant.

—[*1] Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola (Norman H. Dachs and Jonathan A. Dachs of counsel), for appellant.

Alexander J. Wulwick, New York, for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered February 4, 2009, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish its prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when she tripped and fell over a open box of fluorescent light bulbs that was on the floor of defendant's store. There are triable issues of fact concerning whether defendant violated its duty to maintain its premises in a reasonably safe condition (see Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 72-76 [2004]; Caicedo v Cheven Keeley & Hatzis, 59 AD3d 363 [2009]). Plaintiff testified that on the day of the accident, there were numerous boxes piled on top of one another in an area generally traversed by customers, which a jury might reasonably find constituted an unsafe condition.

Because defendant failed to meet its prima facie burden on its motion, we need not address its argument that the court should not have considered plaintiff's opposition papers because they were untimely. Concur—Tom, J.P., Friedman, Nardelli, Buckley and Richter, JJ.