Schloss v. Stew Leonard's Yonkers, LLC

24 A.D.3d 223, 804 N.Y.S.2d 922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2005
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered April 26, 2005, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The record raises a triable factual issue as to whether an employee of defendant created the alleged hazard by either placing a “U-boat” dolly behind plaintiff or leaving it unattended in a shopping aisle of defendant’s store. In this connection we note the deposition testimony of the store’s security supervisor in which he stated that the “U-boat” dollies were used to transport products from the store’s warehouse to the retail area for shelving and were not for customer use (see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 [1998]; Healy v ARP Cable, 299 AD2d [2002]). Concur—Tom, J.P., Marlow, Gonzalez and Sweeny, JJ.