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Posada v. Great Atlantic and Pacific Tea Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 23, 2010

ROSA POSADA, APPELLANT,
v.
GREAT ATLANTIC AND PACIFIC TEA COMPANY, D/B/A WALDBAUM'S SUPERMARKET, RESPONDENT.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), rendered May 29, 2008, as denied that branch of her motion which was for summary judgment on the issue of liability.

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.

STEVEN W. FISHER, J.P., ANITA R. FLORIO, ARIEL E. BELEN and L. PRISCILLA HALL, JJ.

(Index No. 10528/07)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability is granted.

The plaintiff alleged that while she was shopping in the dairy section of the defendant supermarket, she reached for an item in an open refrigeration unit, and was struck from the rear by a "large multi-wheeled cart." The cart, which contained products to put on the shelves of the supermarket, was being used by one of the defendant's employees. The plaintiff commenced this action and subsequently moved, inter alia, for summary judgment on the issue of liability, which was denied by the Supreme Court.

In response to the plaintiff's establishment, prima facie, of her entitlement to judgment as a matter of law, the defendant failed to submit evidence sufficient to raise a triable issue of fact (see Araujo v Elkahlaoui, 68 AD3d 1030). Therefore, the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

FISHER, J.P., FLORIO, BELEN and HALL, JJ., concur.

20100223

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