CHEMONT v. PATHMARK SUPERMARKETS INC (2001)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated March 22, 2000, 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.

The plaintiff was allegedly injured when she slipped and fell on a puddle of rain water on the floor of the vestibule of the defendant's store.   There was a severe and sudden thunderstorm in progress at the time that the plaintiff entered the store.

 The defendant met its initial burden of showing, as a matter of law, that it did not create the dangerous condition which caused the accident, and did not have actual notice thereof (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740).   Moreover, to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant's employees to discover and remedy it (see, Gordon v. American Museum of Natural History, supra;  Alatief v. New York City Tr. Auth., 256 A.D.2d 371, 681 N.Y.S.2d 562).   The plaintiff failed to raise a triable issue of fact that the rain water had accumulated on the floor of the vestibule for a sufficient length of time before the plaintiff's fall so as to permit the defendant to discover and remedy the condition (see, Seneglia v. FPL Foods, 273 A.D.2d 221, 709 N.Y.S.2d 842;  Smith v. May Dept. Store Co., 270 A.D.2d 870, 705 N.Y.S.2d 153;  Maguire v. Southland Corp., 245 A.D.2d 347, 665 N.Y.S.2d 680).

Furthermore, the plaintiff failed to proffer any evidence that this was a recurrent dangerous condition, or that the defendant had actual knowledge of this allegedly recurrent dangerous condition (see, Carlos v. New Rochelle Mun. Hous. Auth., 262 A.D.2d 515, 692 N.Y.S.2d 428;  Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494;  Young v. Fleary, 226 A.D.2d 454, 640 N.Y.S.2d 593).