| Addolorato v Waldbaums |
| 2008 NY Slip Op 09735 [57 AD3d 592] |
| December 9, 2008 |
| Appellate Division, Second Department |
| Robert Addolorato et al., Respondents, v Waldbaums,Appellant. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael T. Reagan of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order ofthe Supreme Court, Suffolk County (R. Doyle, J.), dated January 30, 2008, which denied its motion forsummary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summaryjudgment dismissing the complaint is granted.
The plaintiff Robert Addolorato (hereinafter the injured plaintiff) allegedly sustained injuries whenhe slipped and fell on a puddle of water near the cash registers at the front of the defendant'ssupermarket. As a result, the injured plaintiff and his wife, suing derivatively, commenced this actionagainst the defendant, alleging that the puddle came from a nearby beverage refrigerator. The defendantmoved for summary judgment dismissing the complaint, contending that it did not create, or have actualor constructive notice of, the puddle. The Supreme Court denied the motion. We reverse.
The defendant submitted evidence sufficient to establish, prima facie, that it neither created thepuddle of [*2]water nor had actual or constructive notice of it (see Perlongo v Park City 3 & 4 Apts., Inc.,31 AD3d 409, 410 [2006]; Popovec vGreat Atl. & Pac. Tea Co., Inc., 26 AD3d 321 [2006]; Collins v Mayfair Super Mkts., Inc., 13 AD3d 330 [2004]; Dwoskinv Burger King Corp., 249 AD2d 358 [1998]). In opposition, the plaintiffs failed to submitevidence sufficient to raise triable issues of fact as to whether the puddle of water came from the nearbybeverage refrigerator and whether the defendant had constructive notice of the puddle (see Palermo v Roman Catholic Diocese ofBrooklyn, N.Y., 20 AD3d 516, 517 [2005]; Collins v Mayfair Super Mkts., Inc., 13AD3d at 331; Dwoskin v Burger King Corp., 249 AD2d 358 [1998]; cf. Gregg v Key Food Supermarket, 50AD3d 1093 [2008]; Marino v Stop &Shop Supermarket Co., 21 AD3d 531 [2005]). The injured plaintiff's affidavit submitted inopposition to the motion sought to raise "a feigned issue of fact with respect to the issue of notice"designed to contradict his prior deposition testimony and, in any event, it was insufficient to raise atriable issue of fact (Popovec v Great Atl. & Pac. Tea Co., Inc., 26 AD3d at 321; see Mallory v City of New Rochelle, 41AD3d 556, 557 [2007]; Stancil vSupermarkets Gen., 16 AD3d 402 [2005]). Accordingly, the Supreme Court should havegranted the defendant's motion for summary judgment dismissing the complaint. Skelos, J.P., Lifson,Santucci and Balkin, JJ., concur.