DePompo v. Waldbaums Supermarket, Inc.
| Decision Date | 25 February 2002 |
| Citation | 737 N.Y.S.2d 646,291 A.D.2d 528 |
| Parties | ITALIA DEPOMPO, Respondent,<BR>v.<BR>WALDBAUMS SUPERMARKET, INC., Appellant, and SALTRU ASSOCIATES JOINT VENTURE et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment is granted, the complaint and all cross claims are dismissed insofar as asserted against the defendant Waldbaums Supermarket, Inc., and the action against the remaining defendants is severed.
The plaintiff stepped into a depression and fell in the parking lot of a shopping center owned by the defendant Saltru Associates Joint Venture doing business as Toys "R" Us (hereinafter Saltru). At the time of the accident, the defendant Waldbaums Supermarket, Inc. (hereinafter Waldbaums), operated a supermarket in the shopping center under a sublease. The plaintiff commenced this action against, among others, Waldbaums and Saltru. Under the terms of the sublease, the lessor retained the obligation to maintain the parking lot and Waldbaums had the right to use the parking lot with other tenants of the shopping center.
Under these circumstances, Waldbaums met its burden as the proponent of the motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557) by establishing as a matter of law that it did not own, occupy, possess, or put to a special use the parking lot where the plaintiff fell, and that it had no right or obligation to maintain this area (see, Welwood v Association for Children with Down Syndrome, 248 AD2d 707; Millman v Citibank, 216 AD2d 278). Moreover, there is no evidence that Waldbaums created the alleged dangerous condition which caused the plaintiff's accident. In opposition, the plaintiff failed to raise a triable issue of fact.
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Bahr v. Airway Cleaners, Inc., 2008 NY Slip Op 32491(U) (N.Y. Sup. Ct. 9/8/2008), Index No: 11589/06.
...30 A.D.3d 386 (2nd Dept. 2006); Franks v. G & H Real Estate Holding Corp., 16 A.D.3d 619 (2nd Dept. 2005); DePompo v. Waldbaums Supermarket, Inc., 291 A.D.2d 528 (2nd Dept. 2002); Welwood v. Association for Children With Down Syndrome, Inc., 248 A.D.2d 707 (2nd Dept. 1998). In opposition, p......
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MacFarlane v. Applebee's Rest.
...lot shared with other tenants, the common law does not impose a duty upon the tenant to do so”); DePompo v. Waldbaums Supermarket, Inc. , 291 A.D.2d 528, 737 N.Y.S.2d 646, 646–47 (2002) (holding that a supermarket operating in a multitenant shopping center was not liable to a customer who f......
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Servo v. Bank of N.Y.
...had no control over or duty to maintain it ( see Hahn v. Wilhelm, 54 A.D.3d 896, 865 N.Y.S.2d 240;DePompo v. Waldbaums Supermarket, 291 A.D.2d 528, 737 N.Y.S.2d 646;Morrison v. Gerlitzky, 282 A.D.2d 725, 724 N.Y.S.2d 73;Discini v. Richgold Assoc., 272 A.D.2d 366, 707 N.Y.S.2d 363). Further,......
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