Banegas v. Unique Gas Corp.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered December 6, 2011, which denied defendant’s motion for [499] summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant failed to establish its entitlement to judgment as a matter of law in this action where plaintiff was allegedly injured when she slipped on ice on the driveway of defendant’s gas station. Plaintiff testified that she slipped on the driveway where cars entered and exited the station. When presented with photographs at her deposition and asked to mark the location of her fall, plaintiff marked a spot in the street that was not part of defendant’s premises. However, on the correction sheet to her deposition testimony, which predated defendant’s motion, plaintiff clarified that she had marked the area where she landed after slipping on the driveway. Moreover, defendant’s employee and the police officer who responded to the scene testified that while they saw plaintiff sitting in the roadway after the accident, they did not see her fall. Accordingly, defendant failed to conclusively demonstrate that plaintiff’s fall was not on its premises. Defendant’s argument that its snow removal efforts were adequate was not raised in its motion papers, and is therefore unpreserved (see e.g. Crawford v Windmere Corp., 262 AD2d 268, 269 [2d Dept 1999]). Concur — Friedman, J.P, Sweeny, Moskowitz, Freedman and Román, JJ.