Ames v. Waldbaum, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated September 6, 2005, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied. By offering no evidence to establish when the area in which the plaintiff allegedly was injured was last inspected or cleaned on the day in question, the defendant failed to establish its prima facie entitlement to judgment as a matter of law (see Feldmus v Ryan Food Corp., 29 AD3d 940, 941 [2006]; Yioves v T.J. Maxx, Inc., 29 AD3d 572, 572-573 [2006]; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436, 436-437 [2005]). Therefore, the defendant’s motion for summary judgment dismissing the complaint should have been denied, without regard to the sufficiency of the opposing affidavits (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Santucci, J.P., Mastro, Spolzino and Fisher, JJ., concur.