O'Dowd v. Pergament Home Centers, Inc.

254 A.D.2d 468, 682 N.Y.S.2d 213, 1998 N.Y. App. Div. LEXIS 11308

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated September 5, 1997, as denied its motion for summary judgment dismissing the complaint and granted that branch of the cross motion of the third-party defendant which was for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

There is a triable issue of fact concerning whether the defendant had constructive notice of the existence of a dangerous condition in an aisle of its store (see, generally, Gordon v American Museum of Natural History, 67 NY2d 836; Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280, 281).

Furthermore, the Supreme Court properly granted that branch of the motion of the third-party defendant, Christopher Dolan, which was for summary judgment dismissing the third-party complaint. Christopher Dolan, the plaintiff’s friend and fellow customer, neither owned the premises nor assumed any duty toward the plaintiff. Bracken, J. P., Copertino, Goldstein and McGinity, JJ., concur.