| Cerkowski v Price Chopper Operating Co., Inc. |
| 2009 NY Slip Op 09337 [68 AD3d 1382] |
| December 17, 2009 |
| Appellate Division, Third Department |
| Lois Cerkowski et al., Appellants, v Price ChopperOperating Company, Inc., et al., Respondents. |
—[*1]
Stein, J. Appeal from an order of the Supreme Court (Williams, J.), entered November 18,2008 in Saratoga County, which granted defendants' motion for summary judgment dismissingthe complaint.
While shopping at the Price Chopper grocery store located in the City of Mechanicville,Saratoga County, plaintiff Lois Cerkowski (hereinafter plaintiff) slipped and fell as sheapproached the checkout lanes. After she stood up, she noticed a clear pool of liquid[FN*]on the floor near a flower display. Plaintiff proceeded to check out and left the store withoutinforming anyone of the incident, but returned to the store approximately one hour later to reportthe incident. Cathy Gorman, then comanager of the store, thereafter typed up a customer accidentform.[*2]
Plaintiff and her husband, derivatively, commenced thisaction seeking damages for injuries sustained as a result of plaintiff's fall. After discovery wascomplete, defendants moved for summary judgment on the ground that they did not create orhave notice of the allegedly dangerous condition causing plaintiff's fall. Supreme Court grantedthe motion, prompting this appeal.
We affirm. To succeed on their motion for summary judgment, defendants bore the initialburden of demonstrating that they kept their premises in a reasonably safe condition and thatthey neither created the dangerous condition nor had actual or constructive notice of suchcondition (see Salerno v North ColonieCent. School Dist., 52 AD3d 1145, 1146 [2008]; Reid v Schalmont School Dist., 50 AD3d 1323, 1324 [2008]).Defendants provided the affidavit and deposition testimony of Catherine Fondano, the front-endsupervisor on duty at the time of the incident, which established that, in accordance with herregular routine, she inspected the area at regular intervals (every 8 to 10 minutes), both beforeand after the accident, that she did not see any liquid on the floor around the flower display andthat she made sure the entire front end was clean and picked up. Fondano's sworn statements alsoestablished that the containers in which the flowers were displayed did not have a lot of water inthem and that she was not aware of any problem, such as leaking or overfilling, which wouldexplain any water claimed to be on the floor. This is sufficient to provide prima facie evidencethat defendants kept the premises in a reasonably safe condition (see Reid v SchalmontSchool Dist., 50 AD3d at 1324; see generally Walker v Golub Corp., 276 AD2d 955,956 [2000]; Van Winkle v Price Chopper Operating Co., 239 AD2d 692, 693 [1997])and did not have actual notice of any dangerous condition (see Maiorano v Price ChopperOperating Co., 221 AD2d 698, 699 [1995]; see generally Tkach v Golub Corp., 265AD2d 632, 633 [1999]).
With regard to plaintiffs' contention that defendants had constructive notice of the dangerouscondition, defendants were initially required to establish that the alleged liquid on the floor wasnot " 'visible and apparent and it [did not] exist for a sufficient length of time prior to theaccident to permit defendant[s'] employees to discover and remedy it' " (Salerno v NorthColonie Cent. School Dist., 52 AD3d at 1147, quoting Gordon v American Museum ofNatural History, 67 NY2d 836, 837 [1986]). Here, plaintiff testified that the liquid inquestion was clear and no larger than a pancake, that she did not see it prior to falling and thatthe lighting in the area was adequate. Taken together with Fondano's sworn statements regardingthe results of her regular inspections of the area, this evidence demonstrates that the liquid wasneither visible nor apparent.
In view of this evidence, Supreme Court properly determined that defendants met their initialburden of proof, thus shifting the burden to plaintiffs to demonstrate the existence of a triableissue of fact (see Salerno v North Colonie Cent. School Dist., 52 AD3d at 1146).Plaintiffs have offered no evidence to contradict defendants' assertions that they maintained thepremises in a reasonably safe condition. Likewise, the record is "devoid of any proof thatdefendants created the allegedly dangerous condition in question" (Tkach v Golub Corp.,265 AD2d at 633). Plaintiffs' theory—that the liquid in which plaintiff fell was water fromthe flower display and that defendants created a dangerous condition by placing the display inthat location without mats underneath to catch water drops—is based upon conjecture andspeculation and must "fail[ ] due to the absence of an affidavit or testimony from a qualifiedexpert" (Tkach v Golub Corp., 265 AD2d at 633).
Specifically, plaintiff testified that she did not notice any liquid—which she described[*3]as "water or oil or something"—on the floor until aftershe fell, that she did not know where it came from and did not see the flowers dripping, butassumed that there was water in the display and "suspected [there was water on the floor]because there were flowers there." Plaintiff further testified that, to her knowledge, no one sawher fall or saw her on the ground and she did not report her fall to anyone at the time. Thecustomer accident form—which indicated that the cause of the accident was "water on thefloor that apparently dripped from the flowers removed from the self service case"—wascompleted approximately 1 to 1½ hours after the incident. Accordingly, the informationcontained therein would not reflect the condition of the area at the time of the fall or the personalknowledge of the employee completing the form but, rather, conclusions based upon plaintiff'sspeculations (compare Altieri v Golub Corp., 292 AD2d 734, 734-735 [2002]).
Such evidence is insufficient to demonstrate a triable issue of fact regarding defendants'creation of the condition causing plaintiff's fall (see Kivlan v Dake Bros., 255 AD2d 782,783 [1998]; see also Bloomer v EmpireForklift, Inc., 46 AD3d 1324, 1325 [2007]; Smith v J.B.H., Inc., 300 AD2d 874,875 [2002]; Dapp v Larson, 240 AD2d 918, 919 [1997]; Maiorano v Price ChopperOperating Co., 221 AD2d at 699). Nor is there any record evidence that defendants hadactual or constructive knowledge of such condition. For example, plaintiff offered no proofregarding the length of time the liquid had been on the floor in the area where plaintiff fell, ofnotice to defendants or of other complaints regarding a recurring condition of that nature (seeSnyder v Golub Corp., 199 AD2d 776, 777 [1993], lv denied 83 NY2d 754 [1994];see also Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; Bray v McGillicuddy's Tap House,Ltd., 41 AD3d 1069, 1070-1071 [2007]; Van Winkle v Price Chopper OperatingCo., 239 AD2d at 693).
The remaining arguments advanced by plaintiffs have been examined and found to beunpersuasive.
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Plaintiff testified at her pretrialdeposition that the pool of liquid was the size of a large pancake, but the incident reportcompleted thereafter indicated that there were small dime size amounts of water.