Jeanne Ratteray, Appellant, v. Computer US Corp., Respondent

Jeanne Ratteray, Appellant, v Computer US Corp., Respondent. [720 NYS2d 372] [MAJORITY] —In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Milano, J.), dated April 12, 2000, which granted the defendant’s motion for summary judgment and dismissed the complaint. Ordered that the order and judgment is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The plaintiff allegedly tripped on a raised part of a public sidewalk between the curb cut and driveway adjacent to the retail premises occupied by the defendant. The Supreme Court granted the defendant’s motion for summary judgment, finding that the plaintiffs evidence was speculative and failed to raise an issue of fact sufficient to deny the motion. We reverse. The defendant did not establish its entitlement to judgment as a matter of law because it failed to demonstrate the absence of a material issue of fact in the first instance (see, Alvarez v Prospect Hosp., 68 NY2d 320). Therefore, the burden never shifted to the plaintiff to raise a triable issue of fact. O’Brien, J. P., Krausman, Florio and Luciano, JJ., concur.