Amann v. Key Foods Supermarkets, Inc.

Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 7, 1991, which denied motions for summary judgment by third-party defendant and defendant to dismiss the third-party complaint and the complaint, unanimously affirmed, with costs. Material issues of fact exist in this action to recover for personal injuries allegedly suffered by third-party defendant’s sales representative as a result of having bent over a shopping cart to pick up a 50-pound box of cheese to be put on display in defendant and third-party plaintiffs supermarket. These include whether third-party defendant breached its duty to properly train and equip its employee, whether defendant failed to provide adequate and proper equipment and assistance to plaintiff in setting up the store display, and whether defendant violated Labor Law §§ 200 and 376. Since a determination of liability in the third-party action will necessarily depend upon a finding of negligence, if any, on defendant’s part, the IAS Court properly declined to dismiss the third-party complaint at this time (see, Corbett v Brown, 32 AD2d 27, 33). Concur—Rosenberger, J. P., Asch, Kassal and Rubin, JJ.