Opinion
2005-05090.
June 13, 2006.
In an action, inter alia, to recover damages for wrongful death, etc., Madison Market Basket, LLC, doing business as Giordano's, sued herein as Giordano's Madison Market Basket, LLC, appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated May 11, 2005, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger (Max W. Gershweir, New York, N.Y. [Jennifer B. Ettenger] of counsel), for appellant.
Grundfast Higham, Stony Brook, N.Y. (John P. Higham of counsel), for respondent.
Before: Florio, J.P., Luciano, Spolzino and Fisher, JJ., concur.
Ordered that the order is affirmed, with costs.
The appellant, in support of its motion for summary judgment dismissing the complaint insofar as asserted against it, made a prima facie showing of entitlement to judgment as a matter of law ( see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851). The motion was properly denied, however, since the plaintiffs raised triable issues of fact concerning whether the alleged defect was a proximate cause of the decedent's fall and whether it was too trivial to be actionable ( see Fairchild v. J. Crew Group, Inc., 21 AD3d 523; Farrar v. Teicholz, 173 AD2d 674).