Gibbs v Albee Tomato Co., Inc.

Gibbs v Albee Tomato Co., Inc. 2014 NY Slip Op 07430 Decided on October 30, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 30, 2014
Mazzarelli, J.P., Acosta, Saxe, Richter, Clark, JJ.
307776/09 13354 13353

[*1] Lloyd Gibbs, Plaintiff-Respondent,

v

Albee Tomato Co., Inc., et al., Defendants-Appellants.

Law Offices of Tobias & Kuhn, New York (Benjamin A. Jacobson of counsel), for Albee Tomato Co., Inc., appellant.

Camacho Mauro Mulholland, LLP, New York (Wendy Jennings of counsel), for Hunts Point Terminal Produce Cooperative Association, Inc., appellant.

Pollack Pollack Isaac & De Cicco, LLP, New York (Jillian Rosen of counsel), for respondent.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered July 1, 2013, which, inter alia, denied the motions of defendants Albee Tomato Co., Inc. (Albee) and Hunts Point Terminal Produce Cooperative Association, Inc. (Hunts Point)

for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants did not establish their entitlement to judgment as a matter of law in this action where plaintiff was allegedly injured when he slipped on ice and water that had leaked from a delivery of produce, and fell off the rear of a loading dock; Hunts Point managed the market and leased it from the City of New York and Albee subleased its unit from Hunts Point. Defendants failed to show that they neither created nor had actual or constructive notice of the wet and slippery condition of the subject loading platform. No evidence was presented by either movant concerning their cleaning schedule or when the area was last inspected prior to the accident (see [*2]Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 420-421 [1st Dept 2011]; compare Raghu v New York City Hous. Auth., 72 AD3d 480, 482 [1st Dept 2010]). It is also unclear from the record as to which defendant was responsible for maintaining the location of the fall.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2014

CLERK