ADDOLORATO v. WALDBAUMS (2008)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated January 30, 2008, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff Robert Addolorato (hereinafter the injured plaintiff) allegedly sustained injuries when he slipped and fell on a puddle of water near the cash registers at the front of the defendant's supermarket.   As a result, the injured plaintiff and his wife, suing derivatively, commenced this action against the defendant, alleging that the puddle came from a nearby beverage refrigerator.   The defendant moved for summary judgment dismissing the complaint, contending that it did not create, or have actual or constructive notice of, the puddle.   The Supreme Court denied the motion.   We reverse.

The defendant submitted evidence sufficient to establish, prima facie, that it neither created the puddle of water nor had actual or constructive notice of it (see Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 410, 818 N.Y.S.2d 158;  Popovec v. Great Atl. & Pac. Tea Co., Inc., 26 A.D.3d 321, 808 N.Y.S.2d 779;  Collins v. Mayfair Super Mkts., Inc., 13 A.D.3d 330, 786 N.Y.S.2d 105;  Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494).   In opposition, the plaintiffs failed to submit evidence sufficient to raise triable issues of fact as to whether the puddle of water came from the nearby beverage refrigerator and whether the defendant had constructive notice of the puddle (see Palermo v. Roman Catholic Diocese of Brooklyn, N.Y., 20 A.D.3d 516, 517, 799 N.Y.S.2d 248;  Collins v. Mayfair Super Mkts., Inc., 13 A.D.3d at 331, 786 N.Y.S.2d 105;  Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494;  cf. Gregg v. Key Food Supermarket, 50 A.D.3d 1093, 858 N.Y.S.2d 220;  Marino v. Stop & Shop Supermarket Co., 21 A.D.3d 531, 800 N.Y.S.2d 591).   The injured plaintiff's affidavit submitted in opposition to the motion “sought to raise a feigned issue of fact with respect to the issue of notice” designed to contradict his prior deposition testimony and, in any event, it was insufficient to raise a triable issue of fact (Popovec v. Great Atl. & Pac. Tea Co., Inc., 26 A.D.3d at 321, 808 N.Y.S.2d 779;  see Mallory v. City of New Rochelle, 41 A.D.3d 556, 557, 836 N.Y.S.2d 426;   Stancil v. Supermarkets Gen., 16 A.D.3d 402, 790 N.Y.S.2d 552).   Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.