MOODY v. WOOLWORTH CO

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

Millie MOODY, Appellant, v. F.W. WOOLWORTH CO., Respondent.

Decided: November 26, 2001

LAWRENCE J. BRACKEN, P.J., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, NANCY E. SMITH and THOMAS A. ADAMS, JJ. Weiss & Rosenbloom, P.C., New York, N.Y. (Barry D. Weiss of counsel), for appellant. Richard J. Baldwin, Hauppauge, N.Y. (Eric P. Tosca 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 (Kitzes, J.), dated January 9, 2001, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 To impose liability on a defendant for a slip and fall on an allegedly dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time (see, Miller v. Gimbel Bros., 262 N.Y. 107, 186 N.E. 410;  Bonilla v. Starrett City at Spring Creek, 270 A.D.2d 377, 704 N.Y.S.2d 619;  Patrick v. Cho's Fruit & Vegetables, 248 A.D.2d 692, 671 N.Y.S.2d 274).   The plaintiff testified in her deposition that her pants were wet after she slipped and fell on the floor of the defendant's store, that there was a plant display nearby, and that leaves and flower petals had fallen from a plant.   She merely speculated as to the cause of the accident.   As a result, the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the plaintiff could not identify what caused her to slip and fall.   In opposition, the plaintiff failed to raise a triable issue of fact (see, Fargot v. Pathmark Stores, 264 A.D.2d 708, 694 N.Y.S.2d 743;  Robinson v. Lupo, 261 A.D.2d 525, 690 N.Y.S.2d 640;  Prisco v. Long Is. Univ., 258 A.D.2d 451, 684 N.Y.S.2d 604).   Therefore, the defendant's motion for summary judgment dismissing the complaint was correctly granted.

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