PANETTA v. Neresco Properties, Inc., defendant. (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dorsa, J.), dated December 3, 2004, which granted the motion of the defendant Phoenix Beverages, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

 To establish a prima facie case of negligence in a slip-and-fall case, a plaintiff must show that the defendant either created the condition which caused the accident, or that it had actual or constructive notice of the condition (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795;  Todd v. City of New York, 19 A.D.3d 587, 797 N.Y.S.2d 544;  Gonzalez v. Jenel Mgt. Corp., 11 A.D.3d 656, 784 N.Y.S.2d 135).   Here, even if the plaintiff's fall was caused by oil and grease on the floor of the recycling facility operated by the defendant Phoenix Beverages, Inc. (hereinafter Phoenix), Phoenix established its entitlement to judgment as a matter of law by submitting evidence demonstrating that it neither created nor had actual or constructive notice of this particular condition (see Mercer v. City of New York, 88 N.Y.2d 955, 647 N.Y.S.2d 159, 670 N.E.2d 443;  Todd v. City of New York, supra;  Scheer v. Pathmark Stores, 6 A.D.3d 520, 774 N.Y.S.2d 394;  Resnick v. Waldbaums Supermarket, 289 A.D.2d 385, 735 N.Y.S.2d 399;  Lombardo v. Island Grill Diner, 276 A.D.2d 532, 716 N.Y.S.2d 578).   In opposition to the motion, the plaintiff relied on evidence which merely showed that Phoenix had a general awareness that oil could leak from trucks entering the recycling facility.   This evidence was insufficient to charge Phoenix with constructive notice of the particular oil or grease spot which allegedly caused the plaintiff's fall on a theory that it had actual notice of a recurrent dangerous condition (see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748;  Mercer v. City of New York, supra;  Piacquadio v. Recine Realty Corp., supra;  Herrera v. Felice Realty Corp., 22 A.D.3d 723, 804 N.Y.S.2d 397;  Crawford v. AMF Bowling Ctrs., Inc., 18 A.D.3d 798, 796 N.Y.S.2d 687).   Accordingly, the Supreme Court properly granted Phoenix's motion for summary judgment.