Wilk v. Guthrie

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), entered July 3, 2012, which denied her motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, without costs or disbursements. The Supreme Court properly denied the defendant’s motion [989] for summary judgment dismissing the complaint. The conflicting deposition testimony submitted in support of the motion revealed the existence of triable issues of fact as to the manner in which the accident occurred, and whether the defendant created the condition which caused the accident (see Willis v Galileo Cortlandt, LLC, 106 AD3d 730 [2013]; Gagliardo v Orton, 95 AD3d 1275 [2012]; Silverman v Johnson, 94 AD3d 860, 861 [2012]; Molloy v Waldbaum, Inc., 72 AD3d 659, 660 [2010]). Since the defendant thus failed to establish her prima facie entitlement to judgment as a matter of law, we need not examine the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Veltri v Solomon, 107 AD3d 699, 700 [2013]). Eng. P.J., Balkin, Lott and Roman, JJ., concur.