Ausch-Alteras v. Equinox - 85th St., Inc. , 2019 NY Slip Op 5478 ( 2019 )

Ausch-Alteras v Equinox - 85th St., Inc. (2019 NY Slip Op 05478)

Ausch-Alteras v Equinox - 85th St., Inc.

2019 NY Slip Op 05478

Decided on July 9, 2019

Appellate Division, First Department

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.

Decided on July 9, 2019
Renwick, J.P., Gische, Kapnick, Singh, JJ.

9818 156700/16

[*1]Lea Ausch-Alteras, Plaintiff-Appellant,

v

Equinox - 85th Street, Inc., Defendant-Respondent.

Gottlieb Siegel & Schwartz, LLP, New York (Lauren M. Solari of counsel), for appellant.

LaRocca Hornik Rosen & Greenberg LLP, New York (David N. Kittredge of counsel), for respondent.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered December 14, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Summary judgment was not warranted in this action, because plaintiff's deposition testimony that she felt "stuck" as she attempted to step off the elliptical machine, coupled with defendant's maintanance worker's testimony that his right leg was stretched out next to the elliptical machine on which plaintiff was exercising, cleaning the outlets in the area, and that plaintiff's foot hit his foot, causing her to lose balance and fall, were together sufficient to raise a triable issue as to whether plaintiff's injuries were caused by defendant's negligence (Cohen v Shopwell, Inc ., 309 AD2d 560 [1st Dept 2003]). An incident report prepared by the manager consistently recounts that plaintiff fell over a worker.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 9, 2019

CLERK