BURGOS v. 205 FOOD CORPORATION (2009)

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered April 29, 2008, which, in an action for personal injuries sustained in a supermarket operated by defendant tenant on premises owned by defendant landlord, denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of granting the motion of defendant Terrinaz Enterprises, LLC for summary judgment, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of defendant Terrinaz Enterprises, LLC dismissing the complaint as against it.

 Plaintiff allegedly tripped and fell over a box of tangerines the size of a supermarket shopping basket.   Such a box can constitute a dangerous condition (see Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 75, 773 N.Y.S.2d 38 [2004] ).   An issue of fact as to whether defendant supermarket created or had notice of this condition was raised by the testimony of plaintiff and a nonparty witness that there were always boxes in the aisles (see Colt v. Great Atl. & Pac. Tea Co., 209 A.D.2d 294, 618 N.Y.S.2d 721 [1994] ).   However, plaintiff failed to raise an issue of fact as to whether defendant Terrinaz Enterprises, LLC, an out-of-possession landlord, had a contractual obligation to make repairs or maintain the premises (see Vasquez v. The Rector, 40 A.D.3d 265, 835 N.Y.S.2d 159 [2007] ).   Accordingly, summary judgment should have been entered in its favor.