ANDERSON v. CENTRAL TRACTOR FARM FAMILY CENTER INC

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

Joyce ANDERSON et al., Respondents, v. CENTRAL TRACTOR FARM & FAMILY CENTER INC., Appellant.

Decided: May 21, 1998

Before MIKOLL, J.P., and MERCURE, WHITE, SPAIN and CARPINELLO, JJ. Friedman, Hirschen, Miller, Coughlin & Campito P.C. (Lynn M. Blake of counsel), Schenectady, for appellant. Horigan, Horigan & Lombardo P.C. (Derek L. Hayden of counsel), Amsterdam, for respondents.

Appeal from an order of the Supreme Court (Best, J.), entered October 20, 1997 in Montgomery County, which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff Joyce Anderson (hereinafter plaintiff) and her husband, derivatively, commenced this action seeking damages for injuries allegedly sustained by plaintiff when she slipped in an aisle of defendant's store in the City of Amsterdam, Montgomery County.   Supreme Court denied defendant's motion for summary judgment dismissing the complaint and this appeal ensued.

 We affirm.   Defendant “satisfied its burden of establishing prima facie that it did not create or have actual or constructive knowledge of the condition that caused plaintiff's injuries” (McClarren v. Price Chopper Supermarkets, 226 A.D.2d 982, 983, 640 N.Y.S.2d 702, lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 378, 672 N.E.2d 604;  cf., Van Steenburg v. Great Atl. & Pac. Tea Co., 235 A.D.2d 1001, 652 N.Y.S.2d 893).   Defendant submitted plaintiff's deposition testimony in which she testified that she was in the store approximately 15 to 20 minutes before she fell at 10:15 A.M., that upon arriving she looked for sale items in the seasonal area, met her husband in the middle of the store and then went to the chainsaw aisle.   She further testified that she saw the oil for the first time after slipping and that she had no idea how long it was on the floor before she arrived (see, Henness v. Lusins, 229 A.D.2d 873, 876, 645 N.Y.S.2d 937).   Defendant also submitted the affidavit of the store manager who stated that the store opened for business at 9:00 A.M. and that between 9:00 A.M. and 9:15 A.M. he walked down the chainsaw aisle, observed no foreign substance or oil on the floor, that no one told him that there was oil on the floor prior to plaintiff slipping and that he saw the oil for the first time after the accident was reported.

 Since defendant satisfied its burden, it was incumbent upon plaintiffs to submit evidence raising a triable issue of fact as to whether defendant had constructive notice of the spill (see, Hollinger v. Chestnut Ridge Racquet Corp., 227 A.D.2d 380, 642 N.Y.S.2d 76;  Bashaw v. Rite Aid of N.Y., 207 A.D.2d 632, 615 N.Y.S.2d 537).   This required a showing that the spill was visible and apparent and existed for enough time before plaintiff fell to permit defendant's employees to discover and remedy it (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).   Plaintiff and her husband described the configuration of the spill as oblong and testified that the spill was three feet long.   They also testified that they saw footprints through the substance, specifically 12 to 15 sets of tracks (cf., Grimes v. Golub Corp., 188 A.D.2d 721, 722, 590 N.Y.S.2d 590).   We find that this testimony provides the evidentiary basis for an inference as to the duration of the condition (see, Salty v. Altamont Assocs., 198 A.D.2d 591, 592, 603 N.Y.S.2d 352;  cf., Hollinger v. Chestnut Ridge Racquet Corp., supra) and, therefore, was sufficient to raise a triable issue of fact as to whether the spill on the floor existed for any appreciable length of time so as to give rise to constructive notice (see, Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698, 699, 633 N.Y.S.2d 413).

ORDERED that the order is affirmed, without costs.

SPAIN, Justice.

MIKOLL, J.P., and MERCURE, WHITE and CARPINELLO, JJ., concur.

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