| Hayden v Waldbaum, Inc. |
| 2009 NY Slip Op 04380 [63 AD3d 679] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Maria Hayden, Appellant, v Waldbaum, Inc.,Respondent. |
—[*1] Boeggeman, George & Corde, P.C., White Plains, N.Y. (Cynthia Dolan of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Rosengarten, J.), dated December 9, 2007, which grantedthe defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly tripped and fell when her foot became caught under the edge of arubber mat which was located in a vestibule of the defendant's store. The plaintiff testified at herdeposition that a portion of the mat had "bubbled up," though she did not trip on the "bubbledup" portion of the mat.
To impose liability upon a defendant in a trip-and-fall action, there must be evidence that thedefendant either created the condition or had actual or constructive notice of it (see Denker v Century 21 Dept. Stores,LLC, 55 AD3d 527 [2008]). A defendant has constructive notice of a defect when it isvisible and apparent, and has existed for a sufficient length of time before the accident that itcould have been discovered and corrected (see Gordon v American Museum of NaturalHistory, 67 NY2d 836 [1986]).
Here, the defendant sustained its initial burden of demonstrating its entitlement to [*2]judgment as a matter of law, by submitting deposition testimony ofthe store's manager that he inspected the vestibule area 50 to 60 times each day and that portersswept the vestibule area three or four times each day (cf. Arzola v Boston Props. Ltd.Partnership, 63 AD3d —, 2009 NY Slip Op 04366 [2009] [decided herewith]). Thestore manager further testified that he never received any complaints that the mat would lift or"bubble up" and that "graft" under the bottom of the mat affixed it to the tile floor below. Inopposition to the motion, the plaintiff failed to raise a triable issue of fact as to whether thedefendant created a dangerous condition with regard to the mat or had actual or constructivenotice of such condition (see Denker vCentury 21 Dept. Stores, LLC , 55 AD3d 527 [2008]). Accordingly, the Supreme Courtproperly granted the defendant's motion for summary judgment dismissing the complaint.Spolzino, J.P., Santucci, Belen and Lott, JJ., concur.