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Bolender v. Tops Markets

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 24, 2009

JOHN BOLENDER, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF NICHOLAS BOLENDER, AN INFANT, PLAINTIFF-RESPONDENT,
v.
TOPS MARKETS, LLC, DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered March 4, 2008 in a negligence action. The order denied the motion of defendant for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., MARTOCHE, FAHEY, PERADOTTO, AND GREEN, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Plaintiff commenced this action, individually and on behalf of his son, seeking damages for injuries sustained by his son when he ingested allegedly tainted ground beef sold by defendant. Contrary to the contention of defendant, Supreme Court properly denied its motion for summary judgment dismissing the complaint. Even assuming, arguendo, that defendant met its initial burden on the motion, we conclude that plaintiff raised a triable issue of fact by submitting evidence establishing that his son suffered from E. coli poisoning as a result of ingesting ground beef sold by defendant(see generally Zuckerman v City of New York, 49 NY2d 557, 562).

20090424

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