White v. Great Atlantic & Pacific Tea Co.

262 A.D.2d 636, 692 N.Y.S.2d 678, 1999 N.Y. App. Div. LEXIS 7632

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1999
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, etc., the defendant Great Atlantic & Pacific Tea Company d/b/a A&P Food Stores, Inc., appeals from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated July 10, 1998, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is reversed insofar as appealed from, with costs, the appellant’s motion is granted, the complaint insofar as it is asserted against the appellant is dismissed, and the action against the remaining defendant is severed.

On June 30, 1994, the plaintiff Carol Anne White slipped and fell on plastic debris in the common area in front of the store owned by the defendant Great Atlantic & Pacific Tea Company d/b/a A&P Food Stores, Inc. (hereinafter the A&P).

The evidence in the record establishes, as a matter of law, that the A&P had neither an exclusive right to possess the common area nor a right or obligation to maintain it (see, Gonzalez v Pathmark, 251 AD2d 627; Welwood v Association for Children with Down Syndrome, 248 AD2d 707; Ardrey v Orange County Agric. Socy., 248 AD2d 573; Millman v Citibank, 216 AD2d 278).

Accordingly, the action against the A&P is dismissed. Mangano, P. J., Sullivan, Goldstein and McGinity, JJ., concur.