DOWD v. Christopher Dolan, Third-Party Defendant-Respondent. (1998)

Supreme Court, Appellate Division, Second Department, New York.

Kerry O'DOWD, Plaintiff-Respondent, v. PERGAMENT HOME CENTERS, INC. d/b/a Pergament, Defendant Third-Party Plaintiff-Appellant; Christopher Dolan, Third-Party Defendant-Respondent.

Decided: October 26, 1998

Before BRACKEN, J.P., and COPERTINO, GOLDSTEIN and McGINITY, JJ. McMillan, Rather, Bennett & Rigano, P.C., Melville, N.Y. (Leslie R. Bennett and Michael C. Schmidt of counsel), for defendant third-party plaintiff-appellant. Elovich & Adell, Long Beach, N.Y. (Mitchel Sommer, A. Trudy Adell, and Richard Lilling of counsel), for plaintiff-respondent. J. Richard MacMurray, Long Beach, N.Y., for third-party defendant-respondent.

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated September 5, 1997, as denied its motion for summary judgment dismissing the complaint and granted that branch of the cross motion of the third-party defendant which was for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

 There is a triable issue of fact concerning whether the defendant had constructive notice of the existence of a dangerous condition in an aisle of its store (see generally, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 281, 619 N.Y.S.2d 760).

 Furthermore, the Supreme Court properly granted that branch of the motion of the third-party defendant, Christopher Dolan, which was for summary judgment dismissing the third-party complaint.   Christopher Dolan, the plaintiff's friend and fellow customer, neither owned the premises nor assumed any duty toward the plaintiff.

MEMORANDUM BY THE COURT.