Melody Villagio et al., Respondents, v. Mandel Foods, Inc., Doing Business as Key Food, Respondent, and Stroehmann's Bakery, Inc., Appellant

Melody Villagio et al., Respondents, v Mandel Foods, Inc., Doing Business as Key Food, Respondent, and Stroehmann’s Bakery, Inc., Appellant. [594 NYS2d 320] [MAJORITY] —In an action to recover damages for personal injuries, etc., the defendant Stroehmann’s Bakery, Inc., appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated October 16, 1990, which denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it and any cross claims against it. Ordered that the order is reversed, on the law, with costs payable by the plaintiffs, the motion is granted, the complaint is dismissed insofar as it is asserted against Stroehmann’s Bakery, Inc., and any cross claims against it are dismissed, and the action against the remaining defendants is severed. The plaintiff Melody Villagio was injured when she fell over a bread rack left in the aisle of a supermarket. We disagree with the Supreme Court that the defendant Stroehmann’s Bakery, Inc., the baker of the bread, failed to submit sufficient evidentiary proof in admissible form to support its motion for summary judgment, as the record discloses an affidavit by a person having knowledge of the material facts (CPLR 3212 [b]). Moreover, the record established that the defendant Stroehmann’s Bakery, Inc., simply had nothing to do with the delivery of its product to retail stores, and thus, had nothing to do with the placement of the bread racks in the store. Accordingly, the motion is granted (see, Zuckerman v City of New York, 49 NY2d 557). Thompson, J. P., Balletta, Rosenblatt and Eiber, JJ., concur.