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ARIAS v. PM PARTNERS

6315, 115701/08, 590645/09.

90 A.D.3d 490 (2011)

934 N.Y.S.2d 160

2011 NY Slip Op 8983

MAYLIN SILVA ARIAS et al., Respondents, v. PM PARTNERS, a General Partnership, Defendant, COMMERCE BANCORP, INC., Appellant, and 200 EAST 65TH STREET CONDOMINIUM et al., Respondents. T.D. BANK N.A., Formerly Known as COMMERCE BANCORP, INC., Third-Party Plaintiff-Appellant, v. MILFORD MANAGEMENT CORP. et al., Third-Party Defendants-Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided December 13, 2011.

The trial court properly denied summary judgment because TD Bank failed to "tender[] sufficient evidence to demonstrate the absence of [a] material issue[] of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]) regarding whether it created the defect that caused plaintiff's accident. The only evidence on which TD Bank relied, the testimony of an employee of the property manager, who was not employed by TD Bank, and

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