Majstorovic v. Best Mkt. , 2023 NY Slip Op 02067 ( 2023 )

Majstorovic v Best Mkt. (2023 NY Slip Op 02067)

Majstorovic v Best Mkt.

2023 NY Slip Op 02067

Decided on April 20, 2023

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 and Entered: April 20, 2023
Before: Oing, J.P., González, Shulman, Higgitt, JJ.

Index No. 155702/19 Appeal No. 82 Case No. 2022-03081

[*1]Zlatija Majstorovic, Plaintiff-Respondent,

v

Best Market et al., Defendants-Appellants.

Iaconis Fusco, LLP, Malverne (Christopher G. Conway of counsel), for appellants.

The Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about June 14, 2022, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The conflicting testimony as to how the accident occurred raised issues of fact and credibility, precluding a grant of summary judgment (see Evans v Acosta, 169 AD3d 438, 439 [1st Dept 2019]; Rawls v Simon, 157 AD3d 418, 418-419 [1st Dept 2018]). While defendants' store manager testified that the metal panel of the ice machine fell on plaintiff as she was unscrewing it to inspect the machine, plaintiff testified that the panel was already opened or unsecured when she arrived and that it suddenly came off and fell on her as she was performing the inspection. This conflicting evidence raised questions of fact as to whether defendants created the hazardous condition or had notice of it.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 20, 2023