| Perez v Walgreen Co. |
| 2008 NY Slip Op 09052 [56 AD3d 634] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Pablo Perez, Appellant, v Walgreen Co., Defendant andThird-Party Plaintiff-Respondent. Edy's Grand Ice Cream et al., Third-PartyDefendants. |
—[*1] Gruvman, Giordano & Glaws, LLP, New York, N.Y. (Charles T. Glaws of counsel), fordefendant third-party plaintiff-respondent. Martyn, Toher & Martyn, Garden City, N.Y. (Frank P. Toher of counsel), for third-partydefendants.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), enteredSeptember 17, 2007, as granted that branch of the defendant's motion which was for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondent.
The plaintiff allegedly slipped and fell on ice cream in the frozen food aisle of thedefendant's premises. The plaintiff stated that he did not see the ice cream until after he fellbecause the ice cream was the same color as the tile floor and that he did not know how long theice cream had been on the floor. He also testified at his deposition that he did not notice anydebris in the ice cream. The plaintiff commenced this action against the defendant. Thedefendant, inter alia, moved for summary judgment dismissing the [*2]complaint, contending that it did not create the allegedly hazardouscondition or have actual or constructive notice of it. The Supreme Court granted the motion. Weaffirm the order insofar as appealed from.
As the movant, the defendant established its entitlement to judgment as a matter of law bysubmitting, inter alia, the deposition testimony of the store manager and the plaintiff, whichdemonstrated, prima facie, that it did not create the alleged hazardous condition or have actual orconstructive notice of it (see Gordon v American Museum of Natural History, 67 NY2d836 [1986]; Popovec v Great Atl. & Pac. Tea Co., Inc., 26 AD3d 321 [2006];Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444 [2002]; Marukos vWaldbaums, Inc., 267 AD2d 434 [1999]). In opposition, the plaintiff failed to submitevidence sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320 [1986]).
Accordingly, the Supreme Court properly granted that branch of the defendant's motionwhich was for summary judgment dismissing the complaint. Ritter, J.P., Florio, Miller and Carni,JJ., concur. [See 2007 NY Slip Op 32910(U).]