GARDNER v. WALDBAUM SUPERMARKET INC

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

Edward GARDNER, et al., appellants, v. WALDBAUM'S SUPERMARKET, INC., respondent.

Decided: September 27, 1999

FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO and HOWARD MILLER, JJ. Rovegno & Taylor, P.C., Forest Hills, N.Y. (Robert B. Taylor of counsel), for appellants. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, N.Y. (Anne M. Gremillot of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (DeMaro, J.), dated July 13, 1998, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered August 21, 1998, which dismissed the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed, with costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised an appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a] [1] ).

In its motion for summary judgment, the defendant demonstrated its entitlement to judgment as a matter of law.   In opposition thereto, the plaintiffs failed to show that a question of fact exists as to whether the defendant either created the condition which allegedly caused the injured plaintiff to slip and fall or had actual or constructive notice thereof (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795;  Albano v. City of New York, 250 A.D.2d 555, 672 N.Y.S.2d 413;  Kraemer v. K-Mart Corp., 226 A.D.2d 590, 641 N.Y.S.2d 130).   The plaintiffs' assertions are based upon mere speculation, which is insufficient to defeat the defendant's motion (see, Perrone v. Waldbaum, Inc., 252 A.D.2d 517, 675 N.Y.S.2d 294;  Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 669 N.Y.S.2d 669;  Kraemer v. K-Mart Corp., supra).   Accordingly, the Supreme Court properly granted the defendant's motion.

MEMORANDUM BY THE COURT.

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