GOLDMAN v. WALDBAUM INC

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

Rita GOLDMAN, Appellant, v. WALDBAUM, INC., d/b/a Waldbaum Supermarket, et al., Respondents.

Decided: August 05, 2002

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY and HOWARD MILLER, JJ. Napoli, Kaiser & Bern, LLP, New York, N.Y. (Elizabeth Montesano of counsel), for appellant. Karl, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, N.Y. (Thaddeus J. Rozanski of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated May 15, 2001, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

To establish a prima facie case of negligence, a plaintiff in a slip-and-fall case must demonstrate that the defendants either created the condition which caused the accident, or had actual or constructive notice of the condition (see Sanchez-Acevedo v. Mariott Health Care Serv., 270 A.D.2d 244, 707 N.Y.S.2d 118).   In this case, the defendants satisfied their burden on the motion for summary judgment by submitting evidence which demonstrated that they neither created the allegedly dangerous condition, a wet slippery film on the floor of a checkout lane of the defendant supermarket, nor had actual or constructive notice of it.

In opposition, the plaintiff submitted an affidavit containing unsubstantiated and speculative assertions that merely theorized that the dangerous condition was created when the supermarket's employee mopped the floor (cf.  Sanchez-Acevedo v. Mariott Health Care Serv., supra).   The plaintiff's affidavit also contradicted her deposition testimony in which she admitted that she did not know how the condition was created, presenting a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony (see Collins v. Rockbottom Stores, 279 A.D.2d 443, 719 N.Y.S.2d 594).   Thus, the plaintiff's affidavit was insufficient to establish that the defendants created the allegedly dangerous condition.

The plaintiff also admitted that the allegedly dangerous condition was not visible, and there was no evidence that the defendants knew about it or how long it existed.   Accordingly, the plaintiff did not establish that the defendants had actual or constructive notice of the condition (see Blaszczyk v. Riccio, 266 A.D.2d 491, 698 N.Y.S.2d 730;  Moss v. JNK Capital, 211 A.D.2d 769, 621 N.Y.S.2d 679, affd. 85 N.Y.2d 1005, 631 N.Y.S.2d 280, 655 N.E.2d 393).

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