Mangual v. Red Ball Interior Demolition Corp. ( 1990 )

Order, Supreme Court, New York County (Leonard N. Cohen, J.), entered on or about November 29, 1989, denying defendant Red Ball Interior Demolition Corp.’s motion for summary judgment dismissing the complaint and cross claims in this personal injury action, unanimously affirmed, with costs.

According to plaintiff, he sustained injury when he fell on a sidewalk rendered defective by the negligent use or delivery of construction dumpsters, found at the scene, bearing defendant Red Ball’s identification. The motion for summary judgment was based upon affidavits of Red Ball’s officers stating that the dumpsters were not then within said defendant’s control and that they had possibly been rented out to contractors by a wholly owned subsidiary but that records of that subsidiary were unavailable. The identification of Red Ball’s dumpsters near the accident site, with debris from the dumpsters strewn about the defective sidewalk, was enough to create a triable issue of fact as to Red Ball’s liability. The unsubstantiated possibility that the dumpsters may have been rented out by Red Ball’s subsidiary was not enough to satisfy defendant’s burden for obtaining judgment in its favor as a matter of law. Concur—Rosenberger, J. P., Kassal, Wallach, Smith and Rubin, JJ.