| Hartley v Waldbaum, Inc. |
| 2010 NY Slip Op 00648 [69 AD3d 902] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Christina Hartley, Respondent, v Waldbaum, Inc., et al.,Appellants. |
—[*1] Siben and Siben, LLP, Bay Shore, N.Y. (Alan G. Farber of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Baisley, J.), dated January 27, 2009, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly sustained injuries when she slipped and fell in a Waldbaum'ssupermarket. As the plaintiff entered the supermarket, she turned right, walked approximately 10feet, and slipped and fell on a puddle of water, near a shrimp display.
The defendants moved for summary judgment dismissing the complaint on the ground thatthey neither created the alleged dangerous condition nor had actual or constructive notice of it.The plaintiff contended that the water came from a display containing trays of shrimp on top ofcrushed ice. However, the plaintiff failed to proffer any evidence that would tend to show thatthe water in the display was not draining properly or was leaking onto the floor.
To prove a prima facie case of negligence in a slip-and-fall case, a plaintiff is required toshow that the defendant created the condition which caused the accident or that the defendanthad actual or constructive notice of the condition (see Joseph v New York City Tr. Auth., 66 AD3d 842 [2009]; Teplin v Bonwit Inn, 64 AD3d642 [2009]; Kershner v Pathmark Stores, 280 AD2d 583 [2001]; Goldman vWaldbaum, Inc., 248 AD2d 436, 437 [1998]). To constitute constructive notice, "a defectmust be visible and apparent and it must exist for a sufficient length of time prior to the accidentto permit defendant's employees to discover and remedy it" (Gordon v American Museum ofNatural History, 67 NY2d 836, 837 [1986]; see Kramer v SBR & C, 62 AD3d 667, 669 [2009]; Stone vLong Is. Jewish Med. Ctr., 302 AD2d 376 [2003]). Since the defendants demonstrated primafacie that they did not have actual or constructive notice of the water, and the plaintiff's claimthat the defendants created the condition was mere speculation, the defendants established theirprima facie entitlement to judgment as a matter of law (see Perez v Walgreen Co., 56 AD3d 634, 635 [2008]; Perlongo v Park City 3 & 4 Apts., Inc.,31 AD3d 409, 411 [2006]; Hagan vP.C. Richards & Sons, Inc., 28 AD3d 422, 423 [2006]; Gatanas v Picnic [*2]Garden B.B.Q. Buffet House, 305 AD2d 457 [2003]; Danev Taco Bell Corp., 297 AD2d 274 [2002]; Goldman v Waldbaum, Inc., 248 AD2d at437).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the puddle ofwater came from the nearby shrimp display or whether the defendants had constructive notice ofthe puddle (see Addolorato vWaldbaums, 57 AD3d 592 [2008]). Accordingly, the Supreme Court should havegranted the defendants' motion for summary judgment dismissing the complaint (id. at592; Dwoskin v Burger King Corp., 249 AD2d 358 [1998]). Rivera, J.P., Dillon, Belenand Roman, JJ., concur.