MARTIN v. MANNIX FAMILY MARKET FOREST AND RICHMOND AVE LLC (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), dated September 21, 2022.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On January 19, 2020, the plaintiff allegedly was injured when he tripped and fell on a floor mat as he entered the defendant's supermarket.  Thereafter, the plaintiff commenced this action to recover damages for personal injuries.  The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.  The plaintiff appeals.

“A defendant moving for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Rivera v. Queens Ballpark Co., LLC, 134 A.D.3d 796, 797, 22 N.Y.S.3d 106;  see Arzola v. Boston Props. Ltd. Partnership, 63 A.D.3d 655, 656, 880 N.Y.S.2d 352).  “A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it” (Mermelstein v. Campbell Fitness NC, LLC, 201 A.D.3d 923, 924, 161 N.Y.S.3d 321;  see Mowla v. Baozhu Wu, 195 A.D.3d 706, 707, 145 N.Y.S.3d 368).

Here, contrary to the plaintiff's contention, the plaintiff failed to raise a triable issue of fact in opposition to the defendant's prima facie showing that it did not create or have actual or constructive notice of a dangerous or defective condition.  An expert opinion offered in opposition to a motion for summary judgment must contain more than mere conclusory assertions (see Romano v. Stanley, 90 N.Y.2d 444, 451, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Salas v. Adirondack Tr. Lines, Inc., 172 A.D.3d 775, 775–776, 99 N.Y.S.3d 359).  Here, the plaintiff's expert failed to set forth any foundation to support his conclusion that the floor mat violated industry standards (see Salas v. Adirondack Tr. Lines, Inc., 172 A.D.3d at 776, 99 N.Y.S.3d 359;  Kasner v. Pathmark Stores, Inc., 18 A.D.3d 440, 441, 794 N.Y.S.2d 418;  Ruggiero v. Waldbaums Supermarkets, 242 A.D.2d 268, 269–270, 661 N.Y.S.2d 37).

The plaintiff's remaining contention is without merit.

CONNOLLY, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.