DENNEHY MURPHY v. NOR TOPIA SERVICE CENTER INC (2009)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), entered December 19, 2007, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff allegedly tripped and fell over a gasoline pump hose which was partially lying on the ground next to the pump housing at the defendants' gas station.   The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint, finding that the hose on the ground was an open and obvious condition.   We affirm, but upon a different basis.

 To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it (see Rubin v. Cryder House, 39 A.D.3d 840, 834 N.Y.S.2d 316;  Penn v. Fleet Bank, 12 A.D.3d 584, 785 N.Y.S.2d 107;  see also Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774).   A defendant has constructive notice of a defect when the defect is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Larsen v. Congregation B'Nai Jeshurun of Staten Is., 29 A.D.3d 643, 815 N.Y.S.2d 187).   Here, the defendants established, prima facie, their entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the pump hose lying on the ground.   In particular, there was evidence that the defendants' employees had twice inspected the area where the injured plaintiff fell in the hour before the accident occurred, and that they did not observe such a condition (see Collins v. Mayfair Super Mkts., Inc., 13 A.D.3d 330, 786 N.Y.S.2d 105).

In opposition, the plaintiffs failed to raise a triable issue of fact.   Mere speculation that the hose was on the ground for a significant period of time prior to the injured plaintiff's arrival at the station is insufficient to defeat the defendants' entitlement to summary judgment (see Rubin v. Cryder House, 39 A.D.3d 840, 834 N.Y.S.2d 316;  Breuer v. Wal-Mart Stores, 289 A.D.2d 276, 734 N.Y.S.2d 204).

Accordingly, the defendants were entitled to summary judgment dismissing the complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).