JANICE MCDONELL AND WILLIAM MCDONELL JR PLAINTIFFS RESPONDENTS v. WAL MART STORES INC WAL MART STORES EAST LP WAL MART REAL ESTATE BUSINESS TRUST AND WALMART REALTY COMPANY DEFENDANTS APPELLANTS

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Supreme Court, Appellate Division, Fourth Department.

JANICE A. MCDONELL AND WILLIAM J. MCDONELL, JR., PLAINTIFFS–RESPONDENTS, v. WAL–MART STORES, INC., WAL–MART STORES EAST, LP, WAL–MART REAL ESTATE BUSINESS TRUST AND WALMART REALTY COMPANY, DEFENDANTS–APPELLANTS.

CA 15–00532

Decided: November 20, 2015

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. BROWN HUTCHINSON LLP, ROCHESTER (KIMBERLY J. CAMPBELL OF COUNSEL), FOR DEFENDANTS–APPELLANTS. MURPHY MEYERS, LLP, ORCHARD PARK, LAW OFFICE OF LAURIE A. BAKER (LAURIE A. BAKER OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Janice A. McDonell (plaintiff) when she slipped and fell on water near the junction of the indoor and outdoor sections of the garden department in defendants' store.  Supreme Court, inter alia, denied defendants' motion for summary judgment dismissing the complaint.  As limited by their brief, the only issue before us on appeal is whether defendants met their initial burden on their motion of establishing that they did not have actual or constructive notice of the allegedly dangerous condition.  We conclude that defendants failed to meet their burden with respect to actual notice inasmuch as they failed to establish that they were unaware of the water in the location of plaintiff's accident prior to her fall (see Hilsman v. Sarwil Assoc., L.P., 13 AD3d 692, 695;  Atkinson v. Golub Corp. Co., 278 A.D.2d 905, 906;  cf.  Navetta v. Onondaga Galleries LLC, 106 AD3d 1468, 1469).  We further conclude that defendants failed to meet their burden with respect to constructive notice inasmuch as their submissions raise issues of fact whether the wet floor “was visible and apparent and existed for a sufficient length of time prior to plaintiff's fall to permit [defendants'] employees to discover and remedy it” (King v. Sam's E., Inc., 81 AD3d 1414, 1415;  see Navetta, 106 AD3d at 1469–1470).

Frances E. Cafarell

Clerk of the Court