HARTLEY v. WALDBAUM INC

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

Christina HARTLEY, respondent, v. WALDBAUM, INC., et al., appellants.

Decided: January 26, 2010

REINALDO E. RIVERA, J.P., MARK C. DILLON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ. Kral Clerkin Redmond Ryan Perry & Girvan, LLP, Smithtown, N.Y. (James V. Derenze of counsel), for appellants. Siben and Siben, LLP, Bay Shore, N.Y. (Alan G. Farber of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Baisley, J.), dated January 27, 2009, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly sustained injuries when she slipped and fell in a Waldbaum's supermarket.   As the plaintiff entered the supermarket, she turned right, walked approximately 10 feet, and slipped and fell on a puddle of water, near a shrimp display.

The defendants moved for summary judgment dismissing the complaint on the ground that they neither created the alleged dangerous condition nor had actual or constructive notice of it.   The plaintiff contended that the water came from a display containing trays of shrimp on top of crushed ice.   However, the plaintiff failed to proffer any evidence that would tend to show that the water in the display was not draining properly or was leaking onto the floor.

 To prove a prima facie case of negligence in a slip-and-fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition (see Joseph v. New York City Tr. Auth., 66 A.D.3d 842, 888 N.Y.S.2d 533;  Teplin v. Bonwit Inn, 64 A.D.3d 642, 881 N.Y.S.2d 897;  Kershner v. Pathmark Stores, 280 A.D.2d 583, 720 N.Y.S.2d 552;  Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 437, 669 N.Y.S.2d 669).   To constitute constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  see Kramer v. SBR & C., 62 A.D.3d 667, 669, 879 N.Y.S.2d 158;  Stone v. Long Is. Jewish Med. Ctr., 302 A.D.2d 376, 754 N.Y.S.2d 352).   Since the defendants demonstrated prima facie that they did not have actual or constructive notice of the water, and the plaintiff's claim that the defendants created the condition was mere speculation, the defendants established their prima facie entitlement to judgment as a matter of law (see Perez v. Walgreen Co., 56 A.D.3d 634, 635, 869 N.Y.S.2d 106;  Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 411, 818 N.Y.S.2d 158;  Hagan v. P.C. Richards & Sons, Inc., 28 A.D.3d 422, 423, 813 N.Y.S.2d 167;  Gatanas v. Picnic Garden B.B.Q. Buffet House, 305 A.D.2d 457, 761 N.Y.S.2d 77;  Dane v. Taco Bell Corp., 297 A.D.2d 274, 746 N.Y.S.2d 45;  Goldman v. Waldbaum, Inc., 248 A.D.2d at 437, 669 N.Y.S.2d 669).

In opposition, the plaintiff failed to raise a triable issue of fact as to whether the puddle of water came from the nearby shrimp display or whether the defendants had constructive notice of the puddle (see Addolorato v. Waldbaums, 57 A.D.3d 592, 869 N.Y.S.2d 218).   Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint (id. at 592, 869 N.Y.S.2d 218;  Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494).

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