GEORGE v. BIG SUPERMARKETS INC (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated January 29, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff slipped and fell on a puddle of cola-colored liquid that was on the floor of the defendant's store next to a shelf displaying bottles of cola-flavored soft drinks.   After the plaintiff was deposed, the defendant moved for summary judgment on the ground that there was no evidence that it had notice of the defective condition.   The plaintiff testified that she did not know how long the spillage was on the floor, did not know where it came from, and had not seen it before she stepped into it.

 To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it (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).   The defendant met its burden of establishing that it neither created the dangerous condition which caused the accident nor had a reasonable time within which to remedy such condition after the alleged notice (id.;  Strowman v. Great Atl. & Pac. Tea Co., 252 A.D.2d 384, 675 N.Y.S.2d 82;  Bernard v. Waldbaum, Inc., 232 A.D.2d 596, 648 N.Y.S.2d 700).  Absent any proof that would warrant a finding that the puddle had been on the floor for any appreciable length of time so as to permit the defendant's employees to discover and remedy it, the defendant cannot be charged with constructive notice (see, Gordon v. American Museum of Natural History, supra;  Masotti v. Waldbaums Supermarket, 227 A.D.2d 532, 533, 642 N.Y.S.2d 950).   Furthermore, the plaintiff's assertions that a nearby seafood clerk allegedly told her that she had prior notice of the puddle on the floor is inadmissible, as the defendant established that the seafood clerk did not have the authority to speak on behalf of the defendant (see, Salkey v. New York Racing Assoc., 243 A.D.2d 621, 665 N.Y.S.2d 521;  Williams v. Waldbaums Supermarkets, 236 A.D.2d 605, 653 N.Y.S.2d 962;  Masotti v. Waldbaums Supermarket, supra, at 533, 642 N.Y.S.2d 950;  Gottlieb v. Waldbaum's Supermarket, 226 A.D.2d 344, 640 N.Y.S.2d 763;  Lowen v. Great Atl. & Pac. Tea Co., 223 A.D.2d 534, 636 N.Y.S.2d 393).

MEMORANDUM BY THE COURT.