RAANAN v. FIFTH AVENUE OF LONG ISLAND REALTY ASSOCIATES (2005)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Peck, J.), entered September 3, 2003, which denied their 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 defendants met their prima facie burden of showing that they neither created nor had actual or constructive notice of the allegedly dangerous condition, a toothpick, upon which the injured plaintiff allegedly slipped and fell (see Goldman v. Waldbaum, Inc., 297 A.D.2d 277, 746 N.Y.S.2d 44).   In opposition, the plaintiffs failed to raise a triable issue of fact that the defendants Waldbaum, Inc., and The Great Atlantic and Pacific Tea Co., Inc., created the “condition” or had actual or constructive notice thereof (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Kraemer v. K-Mart Corp., 226 A.D.2d 590, 591, 641 N.Y.S.2d 130;  Becker v. Waldbaum, Inc., 221 A.D.2d 396, 633 N.Y.S.2d 533;  Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 281, 619 N.Y.S.2d 760).   The plaintiffs interposed no opposition to that branch of the motion which was made on behalf of the defendant Fifth Avenue of Long Island Realty Associates, an out-of-possession landlord.

Accordingly, the defendants' motion for summary judgment dismissing the complaint should have been granted.