Appellate Division of the Supreme Court of New York, 2000

Frank v. Price Chopper Operating Co.

Appellate Division of the Supreme Court of New York · Decided September 29, 2000

275 A.D.2d 940; 713 N.Y.S.2d 614; 2000 N.Y. App. Div. LEXIS 9787

Cases that cite this one

14 later published cases cite this decision.

Sarago v. Iroquois Fence, Inc. (Appellate Division of the Supreme Court of New York 2022)
Lama v. Pham (Appellate Division of the Supreme Court of New York 2021)
FARRAUTO, PATRICIA v. THE BON-TON DEPARTMENT STORES, INC. (Appellate Division of the Supreme Court of New York 2016)
Farrauto v. Bon-Ton Department Stores, Inc. (Appellate Division of the Supreme Court of New York 2016)
Farrauto v. Bon-Ton Department Stores, Inc. (Appellate Division of the Supreme Court of New York 2016)
BROWN, FRANCES v. SMITH, OSAMARINA V. (Appellate Division of the Supreme Court of New York 2011)
Brown v. Smith (Appellate Division of the Supreme Court of New York 2011)
Ramos v. Howard Industries, Inc. (Appellate Division of the Supreme Court of New York 2007)
Gentile v. University of Rochester Medical Center (Appellate Division of the Supreme Court of New York 2002)
Frazier v. Pioneer Central School District (Appellate Division of the Supreme Court of New York 2002)
Sulinski v. Ardco, Inc. (Appellate Division of the Supreme Court of New York 2002)
Aldrich v. County of Oneida (Appellate Division of the Supreme Court of New York 2002)
Dodge v. City of Hornell Industrial Development Agency (Appellate Division of the Supreme Court of New York 2001)
Kajfasz v. Wal-Mart Stores, Inc. (Appellate Division of the Supreme Court of New York 2001)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—Order *941unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action seeking to recover damages for personal injuries sustained by Congetta Frank (plaintiff) when she slipped and fell on a piece of waxed paper in the aisle at defendant’s store. Supreme Court properly denied that part of defendant’s motion seeking summary judgment dismissing the complaint insofar as it is based on the theories that defendant affirmatively created the dangerous condition or had constructive notice of it. It is well established that a party cannot obtain summary judgment “by pointing to gaps in its opponent’s proof’ (Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615; see, Orcutt v American Linen Supply Co., 212 AD2d 979, 980). Defendant failed to meet its initial burden of demonstrating that it did not create the allegedly dangerous condition (see, Telesco v Bateau, 273 AD2d 894) and that the condition was not visible or apparent for a sufficient length of time to enable defendant to discover and correct it (cf., Battaglia v Toys “R” Us, 271 AD2d 627; Tenebruso v Toys "R" Us-NYTEX, 256 AD2d 1236, 1237). Because defendant failed to meet its initial burden, we need not determine the sufficiency of plaintiffs’ opposition to the motion (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Joyes v Buffalo Waterfront Rest. Corp., 262 AD2d 1019, 1019-1020). (Appeal from Order of Supreme Court, Oneida County, Parker, J. — Summary Judgment.) Present— Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.