CERKOWSKI v. PRICE CHOPPER OPERATING COMPANY INC (2009)

Appeal from an order of the Supreme Court (Williams, J.), entered November 18, 2008 in Saratoga County, which granted defendants' motion for summary judgment dismissing the complaint.

While shopping at the Price Chopper grocery store located in the City of Mechanicville, Saratoga County, plaintiff Lois Cerkowski (hereinafter plaintiff) slipped and fell as she approached the check out lanes.   After she stood up, she noticed a clear pool of liquid ¹ on the floor near a flower display.   Plaintiff proceeded to check out and left the store without informing anyone of the incident, but returned to the store approximately one hour later to report the incident.   Cathy Gorman, then co-manager of the store, thereafter typed up a customer accident form.

Plaintiff and her husband, derivatively, commenced this action seeking damages for injuries sustained as a result of plaintiff's fall.   After discovery was complete, defendants moved for summary judgment on the ground that they did not create or have notice of the allegedly dangerous condition causing plaintiff's fall.   Supreme Court granted the motion, prompting this appeal.

 We affirm.   To succeed on their motion for summary judgment, defendants bore the initial burden of demonstrating that they kept their premises in a reasonably safe condition and that they neither created the dangerous condition nor had actual or constructive notice of such condition (see Salerno v. North Colonie Cent. School Dist., 52 A.D.3d 1145, 1146, 861 N.Y.S.2d 811 [2008];  Reid v. Schalmont School Dist., 50 A.D.3d 1323, 1324, 856 N.Y.S.2d 691 [2008] ).   Defendants provided the affidavit and deposition testimony of Catherine Fondano, the front-end supervisor on duty at the time of the incident, which established that, in accordance with her regular routine, she inspected the area at regular intervals (every 8 to 10 minutes), both before and after the accident, that she did not see any liquid on the floor around the flower display and that she made sure the entire front end was clean and picked up.   Fondano's sworn statements also established that the containers in which the flowers were displayed did not have a lot of water in them and that she was not aware of any problem, such as leaking or overfilling, which would explain any water claimed to be on the floor.   This is sufficient to provide prima facie evidence that defendants kept the premises in a reasonably safe condition (see Reid v. Schalmont School Dist., 50 A.D.3d at 1324, 856 N.Y.S.2d 691;  see generally Walker v. Golub Corp., 276 A.D.2d 955, 956, 714 N.Y.S.2d 796 [2000];  Van Winkle v. Price Chopper Operating Co., 239 A.D.2d 692, 693, 657 N.Y.S.2d 236 [1997] ) and did not have actual notice of any dangerous condition (see Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698, 699, 633 N.Y.S.2d 413 [1995];  see generally Tkach v. Golub Corp., 265 A.D.2d 632, 633, 696 N.Y.S.2d 289 [1999] ).

 With regard to plaintiffs' contention that defendants had constructive notice of the dangerous condition, defendants were initially required to establish that the alleged liquid on the floor was not “ ‘visible and apparent and it [did not] exist for a sufficient length of time prior to the accident to permit defendant[s'] employees to discover and remedy it’ ” (Salerno v. North Colonie Cent. School Dist., 52 A.D.3d at 1147, 861 N.Y.S.2d 811, quoting Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ).   Here, plaintiff testified that the liquid in question was clear and no larger than a pancake, that she did not see it prior to falling and that the lighting in the area was adequate.   Taken together with Fondano's sworn statements regarding the results of her regular inspections of the area, this evidence demonstrates that the liquid was neither visible nor apparent.

 In view of this evidence, Supreme Court properly determined that defendants met their initial burden of proof, thus shifting the burden to plaintiffs to demonstrate the existence of a triable issue of fact (see Salerno v. North Colonie Cent. School Dist., 52 A.D.3d at 1146, 861 N.Y.S.2d 811).   Plaintiffs have offered no evidence to contradict defendants' assertions that they maintained the premises in a reasonably safe condition.   Likewise, the record is “devoid of any proof that defendants created the allegedly dangerous condition in question” (Tkach v. Golub Corp., 265 A.D.2d at 633, 696 N.Y.S.2d 289).   Plaintiffs' theory-that the liquid in which plaintiff fell was water from the flower display and that defendants created a dangerous condition by placing the display in that location without mats underneath to catch water drops-is based upon conjecture and speculation and must “fail[ ] due to the absence of an affidavit or testimony from a qualified expert” (Tkach v. Golub Corp., 265 A.D.2d at 633, 696 N.Y.S.2d 289).

Specifically, plaintiff testified that she did not notice any liquid-which she described as “water or oil or something”-on the floor until after she fell, that she did not know where it came from and did not see the flowers dripping, but assumed that there was water in the display and “suspected [there was water on the floor] because there were flowers there.”   Plaintiff further testified that, to her knowledge, no one saw her fall or saw her on the ground and she did not report her fall to anyone at the time.   The customer accident form-which indicated that the cause of the accident was “water on the floor that apparently dripped from the flowers removed from the self service case”-was completed approximately 1 to 1 1/2 hours after the incident.   Accordingly, the information contained therein would not reflect the condition of the area at the time of the fall or the personal knowledge of the employee completing the form but, rather, conclusions based upon plaintiff's speculations (compare Altieri v. Golub Corp., 292 A.D.2d 734, 734-735, 741 N.Y.S.2d 126 [2002] ).

Such evidence is insufficient to demonstrate a triable issue of fact regarding defendants' creation of the condition causing plaintiff's fall (see Kivlan v. Dake Bros., 255 A.D.2d 782, 783, 680 N.Y.S.2d 293 [1998];  see also Bloomer v. Empire Forklift, Inc., 46 A.D.3d 1324, 1325, 850 N.Y.S.2d 224 [2007];  Smith v. J.B.H., Inc., 300 A.D.2d 874, 875, 752 N.Y.S.2d 134 [2002];  Dapp v. Larson, 240 A.D.2d 918, 919, 659 N.Y.S.2d 130 [1997];  Maiorano v. Price Chopper Operating Co., 221 A.D.2d at 699, 633 N.Y.S.2d 413).   Nor is there any record evidence that defendants had actual or constructive knowledge of such condition.   For example, plaintiff offered no proof regarding the length of time the liquid had been on the floor in the area where plaintiff fell, of notice to defendants or of other complaints regarding a recurring condition of that nature (see Snyder v. Golub Corp., 199 A.D.2d 776, 777, 605 N.Y.S.2d 166 [1993], lv. denied 83 N.Y.2d 754, 612 N.Y.S.2d 108, 634 N.E.2d 604 [1994];  see also Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795 [1994];  Bray v. McGillicuddy's Tap House, Ltd., 41 A.D.3d 1069, 1070-1071, 838 N.Y.S.2d 262 [2007];  Van Winkle v. Price Chopper Operating Co., 239 A.D.2d at 693, 657 N.Y.S.2d 236).

The remaining arguments advanced by plaintiffs have been examined and found to be unpersuasive.

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Plaintiff testified at her pretrial deposition that the pool of liquid was the size of a large pancake, but the incident report completed thereafter indicated that there were small dime size amounts of water.

STEIN, J.

CARDONA, P.J., PETERS, LAHTINEN and KANE, JJ., concur.