Davis v. Ted's Jumbo Red Hots, Inc.

Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Carol A. Davis when she allegedly tripped and fell while walking across the driveway of defendant Ted’s Jumbo Red Hots, Inc. Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint. Although defendants met their initial burden on the motion, plaintiffs raised an issue of fact whether the allegedly dangerous condition of the driveway arose from defendants’ use of the driveway (see generally, Zuckerman v City of New York, 49 NY2d 557 , 562). (Appeal from Order of Supreme Court, Erie County, Mintz, J.— Summary Judgment.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Lawton, JJ.