HANNAN v. Old McDonald Farm, appellant. (2006)

In an action to recover damages for personal injuries, the defendant Old McDonald Farm appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J.), dated December 11, 2004, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the defendant Old McDonald Farm.

The plaintiff alleged that he slipped on some fruit left on the sidewalk outside of the appellant's store.   The appellant established prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff that he did not see anything on the sidewalk outside of the appellant's store at any time before his fall, and did not see any of the defendant's employees drop any fruit.   In opposition, the plaintiff failed to submit any evidence raising a triable issue of fact (see Onley v. Shopwell, Inc., 16 A.D.3d 565, 792 N.Y.S.2d 156).