Andres v. Ames Dept. Store Inc.

• Decision Date: 24 September 1992
• Citation: 588 N.Y.S.2d 50,186 A.D.2d 328
• Parties: Gerald J. ANDRES, Respondent, v. AMES DEPARTMENT STORE INC., Appellant, and East Greenbush Associates, Respondent, et al., Defendant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 50

588 N.Y.S.2d 50

186 A.D.2d 328

Gerald J. ANDRES, Respondent, v. AMES DEPARTMENT STORE INC., Appellant and East Greenbush Associates, Respondent, et al., Defendant (And a Third-Party Action.)

Supreme Court, Appellate Division,

Third Department.

Sept. 24, 1992.

Pinsky & Skandalis (George Skandalis, of counsel), Syracuse, for appellant.

Thuillez, Ford, Gold & Connolly (Michael J. Hutter, of counsel), Albany, for Gerald J. Andres, respondent.

Pemberton & Briggs (Paul Briggs, of counsel), Schenectady, for East Greenbush Associates, respondent.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski (John F. Muller, of counsel), Albany, for Piazza and Tompkins Const. Co., third-party defendant.

Before WEISS, P.J., and MIKOLL, YESAWICH, MERCURE and CREW, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court (Keniry, J.), entered October 17, 1991 in Rensselaer County, which, inter alia, denied defendant Ames Department Store Inc.'s motion for summary judgment dismissing the complaint against it.

Even if it is accepted that defendant Ames Department Store Inc. submitted enough proof to warrant summary judgment in its favor (see, GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 498 N.Y.S.2d 786, 489 N.E.2d 755; cf., Franceschi v. Consolidated Rail Corp., 142 A.D.2d 915, 531 N.Y.S.2d 412), plaintiff, in our view, came forward with sufficient proof in evidentiary form to create a question of fact requiring a trial on the issue of whether Ames actually created the hazard causing plaintiff's injury (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; cf., McGill v. Caldors Inc., 135 A.D.2d 1041, 522 N.Y.S.2d 976). Ames claimed that pretrial discovery failed to implicate it as the party responsible for the presence of the two-by-four board containing the nail on which plaintiff stepped and injured himself in the parking lot. Plaintiff, however, established that on the date of the accident employees of Ames had already begun the process of installing fixtures and stocking merchandise in preparation for the opening of Ames' new store. Plaintiff also submitted deposition testimony indicating that Ames received and disassembled wooden crates with nails in the vicinity of the accident prior to its occurrence. Under these circumstances, Supreme Court properly denied Ames' motion insofar as "arguable questions of fact exist" (see, Wilder v. Rensselaer Polytechnic Inst., 175 A.D.2d 534, 535, 572 N.Y.S.2d...