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ROSA POSADA, Appellant, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, Doing Business as WALDBAUM'S SUPERMARKET, Respondent .

Ordered that the order reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs motion which was for summary judgment on the issue of liability is granted.

The plaintiff alleged that while she was shopping in the dairy section of the defendant supermarket, she reached for an item in an open refrigeration unit, and was struck from the rear by a "large multi-wheeled cart." The cart, which contained products to put on the shelves of the supermarket, was being used by one of the defendant's employees. The plaintiff commenced this action and subsequently moved, inter alia, for summary judgment on the issue of liability, which was denied by the Supreme Court.

In response to the plaintiffs establishment, prima facie, of her entitlement to judgment as a matter of law, the defendant failed to submit evidence sufficient to raise a triable issue of fact ( see Araujo v Elkahlaoui, 68 AD3d 1030). Therefore, the Supreme Court should have granted that branch of the plaintiffs motion which was for summary judgment on the issue of liability.

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POSADA v. GREAT ATL. PAC. TEA CO
(Feb 23, 2010)