SMITH v. EDWARDS INC

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

Mildred SMITH, et al., Plaintiffs-Appellants, v. P&J EDWARDS, INC., etc., et al., Defendants-Respondents.

Decided: April 18, 2000

ROSENBERGER, J.P., WILLIAMS, TOM and ANDRIAS, JJ. Stephen C. Glasser, for Plaintiffs-Appellants. Martin I. Nagel, for Defendants-Respondents.

Judgment, Supreme Court, Bronx County (Howard Silver, J.), entered February 16, 1999, dismissing the complaint pursuant to an order that granted defendants' motion for summary judgment, unanimously affirmed, without costs.

 Plaintiff alleges that she slipped and fell on icing and crumbs in defendants' supermarket, close to a table on which there were samples of bakery goods.   However, plaintiff offers no competent proof that the crumbs and icing came from that table, or, indeed, that it was crumbs and icing that caused her to fall.   Accordingly, plaintiff cannot argue that defendants created the allegedly dangerous condition.   Nor does plaintiff raise an issue of fact as to notice with evidence that the crumbs and icing were an ongoing and recurring condition in the area where she fell that defendants routinely left unaddressed (see, O'Connor-Miele v. Barhite & Holzinger, 234 A.D.2d 106, 650 N.Y.S.2d 717).   While plaintiff was a frequent customer of the store, she did not testify that she routinely noticed crumbs and icing on the floor in the area where she fell, and evidence was produced by defendants that the area was regularly swept.   Absent any evidence from which a jury could find that defendants had either actual or constructive notice of a dangerous condition, the complaint was properly dismissed (see, Rabat v. GNAC Corp., 180 A.D.2d 540, 579 N.Y.S.2d 407).

MEMORANDUM DECISION.