Sickle v. King Kullen Grocery Co.

The plaintiffs failed to sustain their burden of making a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability. The evidence submitted in support of the motion for summary judgment on the issue of liability, which included the deposition testimony of the plaintiff Diane Sickle and of an employee of the defendant’s supermarket, revealed that there are triable issues of fact as to how the accident occurred (see generally Collins v 5840 Merrick Rd. Realty Corp., 80 AD3d 551 [2011]; Barrett v New York City Tr. Auth., 80 AD3d 550 [2011]). The failure to make a prima facie showing eliminating those issues of fact required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]). Covello, J.E, Dickerson, Eng and Sgroi, JJ., concur.