Herman v. Town of Clarence

—Order unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action to recover damages for personal injuries sustained by Audrey J. Herman (plaintiff) when she tripped and fell over a railroad tie placed near the edge of a parking lot on property owned by defendant. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Defendant failed to meet its initial burden of establishing as a matter of law that the railroad tie over which plaintiff tripped and fell was not a dangerous or defective condition or that the 1230 alleged defect was obvious and readily observable (see generally, Kurshals v Connetquot Cent. School Dist., 227 AD2d 593). Although plaintiffs will bear the burden at trial of proving that the railroad tie was a dangerous or defective condition that was not obvious and readily observable, on its motion for summary judgment defendant bore the burden of establishing its entitlement to judgment as a matter of law (see, Winegrad, v New York Univ. Med. Ctr., 64 NY2d 851, 853; Roska v Town of Cheektowaga [appeal No. 2], 251 AD2d 984). Although there is no need to consider the adequacy of plaintiffs’ submissions in opposition to the motion because defendant failed to meet its burden (see, Winegrad v New York Univ. Med. Ctr., supra, at 853), we note that, in any event, plaintiffs sustained their burden of demonstrating that a triable issue of fact exists. (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Denman, P. J., Pine, Pigott, Jr., Balio and Fallon, JJ.