BERZON v. AGOSTINO SUPERMARKETS INC

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

Gloria BERZON, respondent, v. D'AGOSTINO SUPERMARKETS, INC., appellant.

Decided: February 28, 2005

ROBERT W. SCHMIDT, J.P., FRED T. SANTUCCI, DANIEL F. LUCIANO, and WILLIAM F. MASTRO, JJ. Torino & Bernstein, P.C., Mineola, N.Y. (Christine M. Capitola of counsel), for appellant. Van Nes & Marantis, LLP, White Plains, N.Y. (Zachary Marantis and Sara Schepps Matschke of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered February 26, 2004, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff allegedly slipped and fell on muffin crumbs on the floor of the defendant's premises.   The plaintiff alleged that after she fell, the defendant's deli manager told her that she saw two children eating muffins in the area.   The deli manager did not state when she saw the children eating muffins and did not indicate whether she saw the children drop crumbs as they ate the muffins.

The defendant met its initial burden of demonstrating that it did not create the alleged dangerous condition and that it did not have notice of it (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795;  Gordon v. Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Pirillo v. Longwood Assocs., 179 A.D.2d 744, 745, 579 N.Y.S.2d 120).   In response, the plaintiff failed to submit evidence sufficient to a raise triable issue of fact.   The plaintiff failed to establish that the deli manager had authority to speak for the defendant so as to bind the defendant that it had notice of the alleged hazardous condition (see Loschiavo v. Port Auth. of N.Y. and N.J., 58 N.Y.2d 1040, 1041, 462 N.Y.S.2d 440, 448 N.E.2d 1351;  Montalbano v. Edwards Super Food Stores, 6 A.D.3d 587, 588, 775 N.Y.S.2d 154;  Cohn v. Mayfair Supermarkets, 305 A.D.2d 528, 529, 759 N.Y.S.2d 131;  Melendez v. Melmarkets, Inc., 276 A.D.2d 535, 536, 714 N.Y.S.2d 688;  George v. Big V Supermarkets, 258 A.D.2d 438, 439, 684 N.Y.S.2d 609;  Williams v. Waldbaums Supermarkets, 236 A.D.2d 605, 606, 653 N.Y.S.2d 962;  Masotti v. Waldbaums Supermarket, 227 A.D.2d 532, 533, 642 N.Y.S.2d 950;  Gottlieb v. Waldbaum's Supermarket, 226 A.D.2d 344, 640 N.Y.S.2d 763).   Moreover, the deli manager did not witness the fall, and there was no showing that the alleged statement was “made under the excitement of the situation” (Rodney v. Town of Brookhaven, 228 A.D.2d 486, 644 N.Y.S.2d 321;  see Tyrrell v. Wal-Mart Stores, 97 N.Y.2d 650, 737 N.Y.S.2d 43, 762 N.E.2d 921;  Lieb v. County of Westchester, 176 A.D.2d 704, 706, 575 N.Y.S.2d 87;   Sherman v. Tamarack Lodge, 146 A.D.2d 767, 537 N.Y.S.2d 249).   Furthermore, the defendant's general awareness that food sometimes fell on the floor of the supermarket was insufficient to establish constructive notice of the particular condition which caused the plaintiff's fall (see Halperin v. Waldbaum's Supermarket, 236 A.D.2d 514, 515, 653 N.Y.S.2d 686;  Kraemer v. K-Mart Corp., 226 A.D.2d 590, 591, 641 N.Y.S.2d 130;  Snyder v. Golub Corp., 199 A.D.2d 776, 605 N.Y.S.2d 166).

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