KASNER v. PATHMARK STORES INC (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Davis, J.), entered March 23, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The defendants, on their motion for summary judgment dismissing the complaint, established their prima facie entitlement to judgment as a matter of law by proffering evidence establishing the absence of a dangerous and defective condition and the lack of notice of the condition complained of (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Brown-Phifer v. Cross County Mall Multiplex, 282 A.D.2d 564, 723 N.Y.S.2d 393;  Visconti v. 110 Huntington Assocs., 272 A.D.2d 320, 707 N.Y.S.2d 884;  Stumacher v. Waldbaum, Inc., 274 A.D.2d 572, 716 N.Y.S.2d 573).   In opposition, the plaintiffs failed to establish the existence of an issue of fact as to whether the section of the entrance mat that allegedly caused the accident was raised prior to the accident or whether it was raised as a consequence of the fall itself (see Christopher v. New York City Tr. Auth., 300 A.D.2d 336, 752 N.Y.S.2d 76;  Brown-Phifer v. Cross County Mall Multiplex, supra;  Visconti v. 110 Huntington Assocs., supra ).   The plaintiffs also failed to establish the existence of an issue of fact as to whether the defendants had notice of the raised portion of the entrance mat under any theory of constructive notice.   The plaintiffs failed to present any evidence to establish that the bump in the entrance mat existed for any appreciable length of time prior to the accident (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774).   In addition, the evidence presented by the plaintiffs to establish the defendants' notice of a recurrent dangerous condition had no relation to the area where the accident allegedly occurred or was based on inadmissible hearsay (see Cohn v. Mayfair Supermarkets, 305 A.D.2d 528, 759 N.Y.S.2d 131;  Anderson v. Central Val. Realty Co., 300 A.D.2d 422, 751 N.Y.S.2d 586). Moreover, a general awareness that floor mats occasionally bunch is insufficient by itself to constitute notice of a dangerous condition (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795;  Gordon v. American Museum of Natural History, supra;  Richardson-Dorn v. Golub Corp., 252 A.D.2d 790, 676 N.Y.S.2d 260).   The affidavit submitted by the plaintiffs' alleged engineering expert did not establish the existence of an issue of fact.   There was no indication in the affidavit that the plaintiff's alleged engineering expert had any training or experience in the supermarket industry or that he visited the site of the accident, and he did not relate a violation of any industry standard (see Veccia v. Clearmeadow Pistol Club, 300 A.D.2d 472, 752 N.Y.S.2d 84;  Cicero v. Selden Assoc., 295 A.D.2d 391, 743 N.Y.S.2d 551;  Shea v. Sky Bounce Ball Co., 294 A.D.2d 486, 742 N.Y.S.2d 383;  Hofmann v. Toys “R” Us-NY Ltd. Partnership, 272 A.D.2d 296, 707 N.Y.S.2d 641;  Ruggiero v. Waldbaums Supermarkets, 242 A.D.2d 268, 661 N.Y.S.2d 37).   Therefore, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

The plaintiffs' remaining contentions are without merit.