Toscano v. Gambella

In a negligence action to recover damages for personal injuries, etc., the third-party defendant Enterprises Packaging, Inc., appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated September 5, 1989, which denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

On June 10, 1987, the plaintiff John Toscano was injured when he slipped and fell in the sprinkler room of a building owned by the defendant George Gambella. Gambella subsequently commenced a third-party action against Enterprises Packaging, Inc. (hereinafter Enterprises) which leased a portion of the subject premises, and Armstrong Paint Manufacturing Co., Ltd. (hereinafter Armstrong) which occupied the remaining portions of the building.

On appeal Enterprises contends that the Supreme Court erred in denying its motion for summary judgment because its lease did not include that portion of the premises where the plaintiff’s accident occurred. We disagree. Although Enterprises did not lease the sprinkler room, in view of its close relationship to the third-party defendant Armstrong, triable issues of fact exist concerning whether Enterprises had access to and control over this portion of the premises. Accordingly, Enterprises’ motion for summary judgment was properly denied (see, Zuckerman v City of New York, 49 NY2d 557). Mangano, P. J., Brown, Sullivan and Eiber, JJ., concur.