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Zapata v. Louie's Seafood Restaurant

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


March 2, 2010

JUAN ZAPATA, APPELLANT,
v.
LOUIE'S SEAFOOD RESTAURANT, LLC, D/B/A LOUIE'S, RESPONDENT.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated March 31, 2009, as, upon renewal, in effect, vacated a prior determination in an order dated December 17, 2008, denying the defendant's motion for summary judgment dismissing the complaint, and thereupon granted the defendant's motion.

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.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, LEONARD B. AUSTIN, JJ.

(Index No. 12147/06)

DECISION & ORDER

ORDERED that the order dated March 31, 2009, is reversed insofar as appealed from, on the law, and, upon renewal, the order dated December 17, 2008, denying the defendant's motion for summary judgment dismissing the complaint is adhered to.

The Supreme Court erred in finding, upon renewal, that the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the complained- of condition did not constitute a dangerous or defective condition on the subject property (cf. Cirino v Greek Orthodox Community of Yonkers, 193 AD2d 576). Accordingly, upon renewal, the Supreme Court should have adhered to its original determination denying the defendant's motion.

SKELOS, J.P., COVELLO, BALKIN and AUSTIN, JJ., concur.

20100302

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