| Yacovelli v Pathmark Stores, Inc. |
| 2009 NY Slip Op 08812 [67 AD3d 1002] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Annette Yacovelli, Respondent, v Pathmark Stores, Inc.,Appellant. |
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In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), datedFebruary 9, 2009, as denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint is granted.
On July 8, 2005, a day marked by intermittent rainfall, the plaintiff slipped and fell whileentering the defendant's supermarket. The defendant had laid down two runners or mats at thestore's entrance. One stretched from the first set of automatic doors through the vestibule to afew feet beyond the second set of automatic doors. The second runner started there andcontinued into the interior of the store. The plaintiff slipped on a section of exposed tile floor atthe end, and to the right, of the first runner.
After the accident she noticed there had been an accumulation of water on the floor in thearea where she fell. In addition, immediately prior to the accident, both of the doors leading intothe store's vestibule and the interior door leading from the vestibule into the shopping arearemained fixed in an open position.
After issue was joined and discovery conducted, the defendant moved for summaryjudgment dismissing the complaint. In the order appealed from, the Supreme Court, inter alia,denied the defendant's motion, and we reverse the order insofar as appealed from.
The defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating, through the affidavit of its former assistant store manager and the submission of avideotape of the accident site in the minutes leading up to the accident, that it neither created thealleged hazardous condition nor had actual or constructive notice of it. The defendant's formerassistant manager averred that there was no accumulation of water at the location of theplaintiff's fall, just inside the entrance to the store, when he inspected the location three minutesbefore she allegedly fell. The videotape confirmed his [*2]presence there and also showed that there was a steady stream ofpedestrian traffic into the store going past that location during the period of time immediatelyprior to the occurrence.
The evidence which the plaintiff submitted in opposition to the defendant's motion failed toraise a triable issue of fact (see CPLR 3212 [b]; Taylor v Jaslove, 61 AD3d 743, 744-745 [2009]; Perlongo v Park City 3 & 4 Apts., Inc.,31 AD3d 409, 411 [2006]; Chemont v Pathmark Supermarkets, 279 AD2d 545, 546[2001]). Contrary to the plaintiff's contention, the defendant was not required to cover all of thefloor space at the entrance to its store with mats (see Negron v St. Patrick's NursingHome, 248 AD2d 687 [1998]). Moreover, there is no evidence in the record that theaccumulation of water which allegedly caused the accident resulted from the doors being fixed inan open position. Accordingly, the Supreme Court should have granted the defendant's motionfor summary judgment dismissing the complaint. Dillon, J.P., Florio, Balkin and Leventhal, JJ.,concur.