Dziengielewski v Tops Mkts., LLC
2009 NY Slip Op 07290 [66 AD3d 1517]
October 9, 2009
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 9, 2009


Edwin Dziengielewski, Appellant,
v
Tops Markets, LLC (Sued Herein as Tops Markets, Also Known as Tops and Another), Respondent.

[*1] The Ballow Law Firm, P.C., Buffalo (Jason A. Richman of counsel), for plaintiff-appellant.

Hiscock & Barclay, LLP, Buffalo (Nicholas J. Dicesare of counsel), for defendant-respondent.

Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered December 11, 2008 in a personal injury action. The order granted the motion of defendant for summary judgment dismissing the amended complaint.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the amended complaint is reinstated.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained while using a handleless cart to move two large barrels of animal refuse in defendant's receiving area. We agree with plaintiff that Supreme Court erred in granting defendant's motion for summary judgment dismissing the amended complaint. Defendant failed to establish its entitlement to summary judgment as a matter of law, inasmuch as its submissions in support of its motion raised an issue of fact whether defendant had undertaken the duty of providing the means by which plaintiff was to move the barrels from the receiving area (see Anderson v Bush Indus., 280 AD2d 949, 950 [2001]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J., Martoche, Peradotto, Carni and Gorski, JJ.