WHITE v. GREAT ATLANTIC PACIFIC TEA COMPANY

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

Carol Anne WHITE, et al., respondents, v. GREAT ATLANTIC & PACIFIC TEA COMPANY d/b/a A&P Food Stores, Inc., appellant, et al., defendant.

Decided: June 28, 1999

GUY JAMES MANGANO, P.J., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, N.Y. (Peter Gallanter of counsel), for appellant.

In a negligence action to recover damages for personal injuries, etc., the defendant Great Atlantic & Pacific Tea Company d/b/a A&P Food Stores, Inc., appeals from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated July 10, 1998, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order is reversed insofar as appealed from, with costs, the appellant's motion is granted, the complaint insofar as it is asserted against the appellant is dismissed, and the action against the remaining defendant is severed.

On June 30, 1994, the plaintiff Carol Anne White slipped and fell on plastic debris in the common area in front of the store owned by the defendant Great Atlantic & Pacific Tea Company d/b/a A&P Food Stores, Inc. (hereinafter the A&P).

The evidence in the record establishes, as a matter of law, that the A&P had neither an exclusive right to possess the common area nor a right or obligation to maintain it (see, Gonzalez v. Pathmark, 251 A.D.2d 627, 676 N.Y.S.2d 488;  Welwood v. Association for Children With Down Syndrome, 248 A.D.2d 707, 670 N.Y.S.2d 556;  Ardrey v. Orange County Agric. Socy., 248 A.D.2d 573, 669 N.Y.S.2d 914;  Millman v. Citibank, 216 A.D.2d 278, 627 N.Y.S.2d 451).

Accordingly, the action against the A&P is dismissed.

MEMORANDUM BY THE COURT.

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