TORRES v. DiMazine Newsstand, Inc., Defendant-Respondent. (2003)

Order, Supreme Court, New York County (Robert Lippmann, J.), entered March 22, 2002, which, to the extent appealed from as limited by plaintiffs' brief, granted defendants' motion for summary judgment dismissing the complaint as against defendant DiMazine Newsstand, Inc., unanimously reversed, on the law, without costs, the motion denied, the complaint reinstated and the matter remanded for further proceedings before a different Justice.

The eight-year-old plaintiff's throat was cut when he reached for a candy bar at a subway newsstand, owned and operated by defendant pursuant to a license with defendant the New York City Transit Authority, and fell onto a hook used to display nuts.   Plaintiff supported himself with one hand on a news rack at the base of the newsstand and reached with his other hand for the candy, located above the display of nuts.   However, the news rack moved when plaintiff leaned on it and plaintiff fell forward onto one of the display hooks.   While the news rack, constructed of three interlocking pieces of wood and formica, is assembled and disassembled every day and ordinarily is secured to the newsstand itself, defendant, whose president is responsible for arranging the display, offered no evidence that it was secured to the newsstand on the day of plaintiff's accident.   Thus, defendant failed to establish as a matter of law on its own motion for summary judgment that it did not create the dangerous condition (see Linett v. Budget Rent-a-Car, 296 A.D.2d 302, 744 N.Y.S.2d 180).   Accordingly, the motion court erred in holding that plaintiffs failed to show that defendant was negligent because they failed to prove that defendant had either actual or constructive notice of the alleged defect (see Martinez v. City of New York, 224 A.D.2d 242, 243, 637 N.Y.S.2d 706 [“Neither actual nor constructive notice need be proven when the defendant is responsible for causing or creating the defective condition responsible for the injuries to the plaintiff”] ).   Given that, in general, children like candy (see Alessi v. Mutual of Omaha, Inc., 52 Misc.2d 650, 652, 276 N.Y.S.2d 473, affd. 29 A.D.2d 632, 286 N.Y.S.2d 472) and are short and, in light of the evidence that the candy at the newsstand was just beyond this infant plaintiff's reach, the issues of whether the accident was foreseeable and was proximately caused by a dangerous condition created by defendant should be resolved by a jury (see Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).