CORSARO v. STOP AND SHOP INC

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

Virginia CORSARO, et al., Appellants, v. STOP AND SHOP, INC., d/b/a Foodtown, Respondent.

Decided: October 29, 2001

LAWRENCE J. BRACKEN, P.J., LEO F. McGINITY, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ. O'Brien & Mayr, Rockville Centre, N.Y. (Robert B. Churbuck and Nicholas P. Calabria of counsel), for appellants. Torino & Bernstein, P.C., Mineola, N.Y., for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Phelan, J.), dated July 5, 2000, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff Virginia Corsaro allegedly was injured when she slipped and fell on a patch of ice in the shopping cart area at the store owned by the defendant Stop and Shop, Inc., d/b/a Foodtown.   In support of its motion for summary judgment, the defendant made a prima facie showing of its entitlement to judgment as a matter of law.   The defendant established that it lacked actual and constructive notice of the icy condition, the injured plaintiff did not see any icy condition until after she fell, the defendant had inspected the area several times a day, and the origin of the icy condition was undetermined (see, Pepito v. City of New York, 262 A.D.2d 619, 692 N.Y.S.2d 691;  DeMasi v. Radbro Realty, 261 A.D.2d 354, 689 N.Y.S.2d 207).   There was no claim that the defendant created the icy condition.   In opposition to the motion, the plaintiffs failed to provide sufficient evidence to establish a triable issue of fact.   That the ice appeared brown and muddy, standing alone, is insufficient to raise an issue of fact as to constructive notice (see, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798;  Grillo v. New York City Tr. Auth., 214 A.D.2d 648, 625 N.Y.S.2d 293).   Therefore, the defendant's motion for summary judgment was properly granted.

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