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Benkov v. TH Outdoor & Events, LLC

Sup Ct, New York County

September 5, 2013

GERRI BENKOV and CHARLES BENKOV, Plaintiffs,
v.
TH OUTDOOR & EVENTS, LLC, CAMPBELL SOUP COMPANY, TIME INC., FLEXCON INC. and GRAPHITEK, INC., Defendants. Index No. 101872/10

Unpublished Opinion

Motion Date: 11/23/2012

DEBRA A. JAMES Justice

The following papers, numbered 1 to 5 were read on this motion for summary judgment.

PAPERS ............................................................................................NUMBERED

Notice of Motion/Order to Show Cause -Affidavits -Exhibits......................1, 2, 3

Answering Affidavits – Exhibits .....................................................................4

Replying Affidavits - Exhibits..........................................................................5

Upon the foregoing papers,

In this negligence action, plaintiff Gerri Benkov ("Gerri") seeks damages for personal injuries she suffered as a pedestrian on a public sidewalk, located on the eastside of Seventh Avenue and which adjoined the building known as 1540 Broadway, New York, New York.

Plaintiff Gerri alleges that on October 3, 2 009 as she walked with her husband in rainy weather, she slipped on a vinyl floor graphic decal containing an advertisement for defendant Campbell Soup Company, affixed to the sidewalk. She alleges that defendants were negligent in either producing the defective floor graphic, which was unsafe, hazardous, dangerous and slippery ("it felt like ice") or causing such floor graphic to be placed on the public sidewalk.

Defendants Campbell Soup Company (Motion Sequence No. 1), Time Inc. (Motion Sequence No. 2), and Flexcon Co., Inc. (Motion Sequence No. 3) move for summary judgment dismissing the complaint and cross claims against each, respectively, which motions are hereby consolidated for disposition. Plaintiffs oppose the motions. Defendant Graphitek, Inc. ("Graphitek") opposes the motion of Campbell Soup Company to the extent that Campbell Soup Company seeks summary judgment on its cross claim for indemnification against Graphitek.

The alleged facts, viewed in the light most favorable to the plaintiffs as the court must in determining the motions, are as follows.

In July 2009, defendant Time, Inc. ("Time") asked Campbell Soup Company (Campbell Soup), through its media agent Media Edge, if Campbell Soup would be interested in promoting its Select Harvest soup brand at Farmer's Market events that were to held in various cities, including Union Square in New York City during the weekend of October 3-4, 2009. If Campbell Soup chose to participate, Time would produce Select Harvest promotional cards to be handed out at the events, and would produce "Select Harvest street decals directing pedestrians to the market", which are also known as "street graphics" or "sidewalk graphics". This offer was made in consideration of the significant advertising space that defendant Campbell Soup had purchased in Time, Inc.'s Cooking Light Magazine. Campbell Soup agreed to participate in the Union Square Farmers Market event. Campbell Soup's authorization was needed for any of the Select Harvest media print that was used in the promotional campaign. Although Campbell Soup could have limited the campaign to media print other than sidewalk graphics, Campbell Soup chose to go forward with the sidewalk graphics as well.

Defendant TH Outdoor & Events LLC ("TH Outdoor") is an outdoor advertising company that does "brand ambassador staffing programs, projection media, and street level media." Such advertising includes placing graphics on sidewalks ("street graphics"). On August 7, 2009, TH Outdoor & Events, LLC (TH Outdoor) and Time entered into a contract for TH Outdoor to place two street graphics marketing Campbell Soup "Select Harvest Natural Soup" products in the area of Times Square, New York City, which directed pedestrians ...


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