| Malenda v Great Atl. & Pac. Tea Co., Inc. |
| 2008 NY Slip Op 03598 [50 AD3d 972] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Ronald Malenda, Appellant, v Great Atlantic & Pacific TeaCo., Inc., Respondent. |
—[*1] Sobel & Kelly, P.C., Huntington, N.Y. (Christopher J. Roess of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Doyle, J.), dated March 26, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff's decedent allegedly slipped and fell on some strawberries that had fallen ontothe floor of the defendant's store in Garfield, New Jersey. In support of its motion for summaryjudgment dismissing the complaint, the defendant relied upon, inter alia, the depositiontestimony of Richard Michalik, its store's comanager. His testimony indicated that he would walkthrough the entire store every half hour and that there were oral instructions to the storeemployees to monitor the floor in the produce department every half hour. Additionally, therewere also some maintenance employees who went around with mops, pails, and brooms,constantly monitoring the floors. Keith Kloza, who was then the produce manager of the store,submitted an affidavit. He averred that he had been in the produce department for 20 minutesbefore the accident and did not recall seeing any strawberries on the floor. This was sufficient tomake out the defendant's prima facie case showing of its entitlement to summary judgmentdismissing the complaint by demonstrating that it neither created the condition complained of norhad actual or constructive knowledge thereof.[*2]
In response, the plaintiff's deposition testimony showedthe existence of a triable issue of fact as to whether the strawberries were on the store floor for asufficient length of time for the defendant's employees to have discovered them and remediedthat condition. The plaintiff testified that when he and his wife, the decedent, first entered thestore, 30 to 40 minutes before the accident, they passed by the produce department. At that time,he noticed some produce and "stuff" on the floor. The material looked like strawberries, and heremembered remarking to the decedent that "for a big store like this they can't clean up the floor."The spot where he first saw the strawberries on the floor when he entered the store was about 10feet away from where he found his wife sitting on the floor after the accident. This was sufficientto show the existence of a factual question on the issue of constructive notice, requiring thedenial of the motion (see Negri v Stop & Shop, 65 NY2d 625 [1985]; Field v Waldbaum, Inc., 35 AD3d652, 653 [2006]; Feldmus v RyanFood Corp., 29 AD3d 940, 942 [2006]; Marino v Stop & Shop Supermarket Co., 21 AD3d 531 [2005]).Fisher, J.P., Florio, Angiolillo, Dickerson and Belen, JJ., concur. [See 2007 NY Slip Op30820(U).]