HAMMER v. KMART CORPORATION

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Supreme Court, Appellate Division, Fourth Department, New York.

Bette K. HAMMER, Plaintiff-Respondent, v. KMART CORPORATION, Defendant-Appellant.  (Appeal No. 1.)

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ. David R. Koepsell, Buffalo, for defendant-appellant. Joseph G. Krenitsky, Buffalo, for plaintiff-respondent.

Supreme Court erred in denying defendant's motion for a directed verdict at the close of plaintiff's case.   Plaintiff fell on what she believed was a puddle of water on the floor of defendant's store.   We reject plaintiff's contention that defendant had constructive notice of a dangerous condition because it was snowy and icy outside, and defendant knew that water may accumulate in different areas in the store (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795).   Plaintiff failed to prove that the water on the floor where she fell was apparent and existed for a sufficient length of time prior to the fall to permit defendant's employees to discover and remedy the defect (cf., Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740).

In addition, although plaintiff proved that defendant had a general awareness that water was present in the front area of the store when the weather was inclement (see, Piacquadio v. Recine Realty Corp., supra), she failed to prove that defendant had actual knowledge of a recurring condition, i.e., that defendant knew that, during inclement weather conditions, water accumulated on the floor in the aisle where she fell (cf., Migli v. Davenport, 249 A.D.2d 932, 933, 672 N.Y.S.2d 551;  Camizzi v. Tops, Inc., 244 A.D.2d 1002, 664 N.Y.S.2d 964).

Judgment unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: