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Burgos v. 205 E.D. Food Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 2, 2009

MARIA S. BURGOS, PLAINTIFF-RESPONDENT,
v.
205 E.D. FOOD CORPORATION, DOING BUSINESS AS C-TOWN, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered April 29, 2008, which, in an action for personal injuries sustained in a supermarket operated by defendant tenant on premises owned by defendant landlord, denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of granting the motion of defendant Terrinaz Enterprises, LLC for summary judgment, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant Terrinaz Enterprises, LLC dismissing the complaint as against it.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Moskowitz, Renwick, Freedman, JJ.

15760/06

Plaintiff allegedly tripped and fell over a box of tangerines the size of a supermarket shopping basket. Such a box can constitute a dangerous condition (see Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 75 [2004]). An issue of fact as to whether defendant supermarket created or had notice of this condition was raised by the testimony of plaintiff and a nonparty witness that there were always boxes in the aisles (see Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294 [1994]). However, plaintiff failed to raise an issue of fact as to whether defendant Terrinaz Enterprises, LLC, an out-of-possession landlord, had a contractual obligation to make repairs or maintain the premises (see Vasquez v The Rector, 40 AD3d 265 [2007]). Accordingly, summary judgment should have been entered in its favor.

M-1066Burgos v 205 E.D. Food Corp., etc., et al.

Motion seeking stay dismissed as moot.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090402

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