WEST v. GREAT ATLANTIC PACIFIC TEA COMPANY INC (1999)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered July 2, 1998, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 Where the defendant has established its entitlement to summary judgment as a matter of law in a slip and fall case involving debris on a supermarket floor, “the plaintiff must demonstrate that the defendant either created the allegedly dangerous condition [that caused the accident] or had actual or constructive notice of it” (Panzella v. Shop Rite Supermarkets, 238 A.D.2d 490, 657 N.Y.S.2d 926;  see also, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795;  Wauters v. Shop Rite, 244 A.D.2d 404, 665 N.Y.S.2d 558;  Gass v. Inserra Supermarkets, 243 A.D.2d 609, 668 N.Y.S.2d 899;  Palestrini v. New York Health and Hosps. Corp., 208 A.D.2d 818, 618 N.Y.S.2d 63;  Kaufman v. Man-Dell Food Stores, 203 A.D.2d 532, 611 N.Y.S.2d 230).   Moreover, “to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Negri v. Stop & Shop, 65 N.Y.2d 625, 491 N.Y.S.2d 151, 480 N.E.2d 740;  Wauters v. Shop Rite, supra;  Katsoris v. Waldbaum, Inc., 241 A.D.2d 511, 512, 663 N.Y.S.2d 984;  Markowitz v. Supermarkets Gen. Corp., 237 A.D.2d 493, 494, 655 N.Y.S.2d 983).

 Here, the plaintiff's submissions failed to establish the existence of material issues of fact with respect to her claim that the substance on the floor of the defendant's supermarket existed for a sufficient length of time prior to the accident in order to have permitted the defendant's employees to discover and remove it (see, Palestrini v. New York Health and Hosps. Corp., supra;  Wauters v. Shop Rite, supra;  Markowitz v. Supermarkets Gen. Corp., supra).

MEMORANDUM BY THE COURT.