SCHULTZ v. NEW YORK RACING ASSOCIATION

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

Ida SCHULTZ, Appellant, v. NEW YORK RACING ASSOCIATION, Respondent.

Decided: August 17, 1998

Before O'BRIEN, J.P., SULLIVAN, JOY and FRIEDMANN, JJ. Gary L. Lipton, Nanuet, N.Y. (Frank G. D'Esposito of counsel), for appellant. Dwyer & Brennan, New York, N.Y. (Taggart Adams of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Goldstein, J.), dated June 6, 1997, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff slipped and fell outside the Club House at Aqueduct Race Track as she walked down an exterior incline that was allegedly strewn with litter.   The plaintiff, while noticing debris in the area, did not see the debris which caused her to fall, and did not present any evidence as to how long the debris had been present.   The plaintiff alleged that the defendant was negligent in failing to maintain the area in a safe condition.

Absent any evidence that a defendant created the dangerous condition or had actual notice of it, and absent a showing of evidentiary facts from which a jury could infer constructive notice from the amount of time that the dangerous condition existed, the complaint was properly dismissed (see, Fasolino v. Charming Stores, 77 N.Y.2d 847, 848, 567 N.Y.S.2d 640, 569 N.E.2d 443;  Cafiero v. Inserra Supermarkets, 195 A.D.2d 681, 599 N.Y.S.2d 342, affd. 82 N.Y.2d 787, 604 N.Y.S.2d 549, 624 N.E.2d 686;  Anderson v. Klein's Foods, 139 A.D.2d 904, 527 N.Y.S.2d 897).   It is well settled that a general awareness that litter may be present is insufficient to charge a defendant with notice of the condition alleged to have caused the accident (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;  Paolucci v. First Natl. Supermarket Co., 178 A.D.2d 636, 578 N.Y.S.2d 212).   Thus, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

MEMORANDUM BY THE COURT.

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