RUISI v. FRANK NURSERY AND CRAFTS INC (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), entered June 23, 1999, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

While walking in an aisle of the defendant's store, the injured plaintiff allegedly tripped on a plastic plaque which was a clearance item and allegedly part of a floor display of clearance merchandise.   This action was thereafter commenced against the defendant, which successfully moved for summary judgment dismissing the complaint.   We affirm.

 In order to establish a prima facie case of negligence, “the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition” (Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 281, 619 N.Y.S.2d 760).   In support of its motion for summary judgment, the defendant established that its clearance merchandise was displayed on a platform, not on the floor, thereby establishing that it did not create the dangerous condition upon which the injured plaintiff tripped.   In opposition, the plaintiffs offered only conclusory statements that the defendant must have placed the plaque in the pathway because it was there when she fell, which was insufficient to defeat the motion for summary judgment (see, Bradish v. Tank Tech Corp., 216 A.D.2d 505, 628 N.Y.S.2d 807).

MEMORANDUM BY THE COURT.