BAER v. GREAT ATLANTIC PACIFIC TEA CO INC

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

Esther BAER, et al., appellants, v. GREAT ATLANTIC & PACIFIC TEA CO., INC., d/b/a Waldbaums, Inc., respondent.

Decided: September 27, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and SANDRA J. FEUERSTEIN, JJ. Schoen Schoen & Strassman, Huntington, N.Y. (David I. Schoen of counsel), for appellants. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, New York, N.Y. (Leonard Porcelli of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated July 30, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff seeks to recover damages for injuries allegedly sustained when she slipped and fell on a liquid substance on the floor of a store owned by the defendant.   The Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.   The injured plaintiff failed to show either that the defendant created or had actual or constructive notice of the condition which allegedly caused her to fall (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Masotti v. Waldbaums Supermarket, 227 A.D.2d 532, 642 N.Y.S.2d 950;  Hollinger v. Chestnut Ridge Racquet Corp., 227 A.D.2d 380, 642 N.Y.S.2d 76).

The injured plaintiff contends that because she slipped in front of the bottle redemption area and had on prior occasions seen liquid drip out of bottles being redeemed by customers, the liquid upon which she slipped must have come from such a bottle.   The injured plaintiff's assertions that the unidentified liquid upon which she slipped came from a bottle being redeemed is speculative and unsupported by any evidence in the record (see, Freeman v. Rock-Hil-Uris, Inc., 30 N.Y.2d 742, 743, 333 N.Y.S.2d 170, 284 N.E.2d 155;  Gernard v. Agosti, 228 A.D.2d 994, 644 N.Y.S.2d 599;  Schwartz v. Mittelman, 220 A.D.2d 656, 632 N.Y.S.2d 667;  Melton v. E.P.S. Hair Design, 202 A.D.2d 649, 610 N.Y.S.2d 53;  Kanarskee v. Pergament Distribs., 201 A.D.2d 704, 609 N.Y.S.2d 842;  Eddy v. Tops Friendly Markets, 91 A.D.2d 1203, 459 N.Y.S.2d 196, affd. 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243).

MEMORANDUM BY THE COURT.

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