DAVANELOS v. (and another title).

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

George DAVANELOS, etc., et al., Appellants, v. FIFTH AVE. SHELL, INC., et al., Respondents, et al., Defendant (and another title).

Decided: September 29, 2003

ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN and DANIEL F. LUCIANO, JJ. Coffinas & Coffinas, LLP, New York, N.Y. (Kirk P. Tzanides and George G. Coffinas of counsel), for appellants. McDonald, Carroll, Cohen & Rayhill, New York, N.Y. (Sean P. King and Mark A. Collesano of counsel), for respondents Fifth Avenue Shell, Inc., s/h/a Fifth Ave. Shell, Inc., Petrofox Corp., and Konstantinos Davanelos. Barry, McTiernan & Moore, New York, N.Y. (Anthony J. McNulty of counsel), for respondents Texaco, Inc., and Star Enterprise, s/h/a Star Enterprise, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated April 30, 2002, as granted the motion of the defendants Fifth Avenue Shell, Inc., s/h/a Fifth Ave. Shell, Inc., Petrofox Corp., and Konstantinos Davanelos for summary judgment dismissing the complaint insofar as asserted against them and granted that branch of the motion of the defendants Texaco, Inc., and Star Enterprise, s/h/a Star Enterprise, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The infant plaintiff (hereinafter the plaintiff) was seriously injured when a “blockbuster” firework, which he found hidden underneath garbage and debris at a gasoline station, allegedly detonated on or near him.   At the time of the accident, the gas station was owned by the defendant Marinos Papadopolous, who leased it to the defendant Petrofox Corp. (hereinafter Petrofox), which, in turn, sublet the premises to the defendant Fifth Avenue Shell, Inc., s/h/a Fifth Ave. Shell, Inc. (hereinafter Fifth Avenue Shell), whose sole shareholder is the defendant Konstantinos Davanelos, the plaintiff's father.   Prior to the plaintiff's accident, Petrofox entered into an agreement with the defendant Star Enterprise, s/h/a Star Enterprise, Inc. (hereinafter Star), for the marketing and sale of motor fuels of the defendant Texaco, Inc. (hereinafter Texaco), at the gasoline station.

The plaintiffs argue that the respondents, Petrofox, Fifth Avenue Shell, Davanelos, Star, and Texaco, owed a duty to the plaintiff to keep the premises clear of the garbage and debris that concealed the firework.   However, as it was not foreseeable that an accumulation of garbage would provide concealment for a firework, particularly when there was no evidence that there had ever before been fireworks on the premises, no cognizable legal duty existed (see Pascarella v. City of New York, 146 A.D.2d 61, 538 N.Y.S.2d 815;  see also Di Ponzio v. Riordan, 89 N.Y.2d 578, 657 N.Y.S.2d 377, 679 N.E.2d 616;  Danielenko v. Kinney Rent A Car, 57 N.Y.2d 198, 455 N.Y.S.2d 555, 441 N.E.2d 1073;  Richichi v. Construction Mgt. Technologies, 244 A.D.2d 540, 664 N.Y.S.2d 615).

In light of this determination, we need not reach the parties' remaining contentions.

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