Summary
In Williams, the court once again applied two different standards to the owner of the premises and to the defendant who delivered the newspapers to said location.
Summary of this case from Berberi v. Fifth Ave. Dev. Co., Llc.Opinion
May 31, 1994
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the order is affirmed, with one bill of costs.
On November 7, 1987, at approximately 9:30 A.M., the plaintiff Mary Williams suffered injuries when she fell in the parking lot of a 7-11 store owned by the defendant Southland Corp. (hereinafter Southland). The accident occurred when a yellow plastic strap wrapped around, and became entangled with, her ankles. Testimony adduced during pretrial discovery indicated, inter alia, that (1) this type of yellow plastic strap was utilized by the defendant Times Mirror, Inc. (hereinafter Times Mirror) to secure its newspapers and comics, (2) an employee of Times Mirror made a delivery of papers to the 7-11 store around 5:00 A.M. and a delivery of comics around 9:00 A.M., (3) it was the duty of the Times Mirror delivery person to cut these straps and discard them in the garbage inside or outside the store, and (4) the yellow strap on the comics was generally loose enough to slip off without cutting.
This probative evidence created triable issues of fact as to (1) whether Times Mirror or its employee created a dangerous condition by failing to properly fasten the yellow strap on its comics or by failing to properly discard the yellow strap (see, Lewis v. Metropolitan Transp. Auth., 64 N.Y.2d 670, affg 99 A.D.2d 246, 249-250, on opn at App. Div.), and (2) whether the presence of the yellow strap was "visible and apparent * * * for a sufficient length of time prior to the accident to permit defendant [Southland's] employees to discover and remedy it" (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837).
Under these circumstances, the Supreme Court properly denied the separate motions of Southland and Times Mirror for summary judgment. Mangano, P.J., Thompson, O'Brien and Florio, JJ., concur.