| Farrell v Waldbaum's, Inc. |
| 2010 NY Slip Op 04137 [73 AD3d 846] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Glenn Farrell et al., Respondents, v Waldbaum's, Inc., etal., Appellants. |
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In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Queens County (Sampson, J.), entered August 20, 2009, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Glenn Farrell (hereinafter the injured plaintiff), allegedly was injured when heslipped and fell on grapes that were scattered on the floor of the produce aisle at a Waldbaum'ssupermarket in Bayside, Queens. Prior to his accident, the injured plaintiff observed two produceclerks stacking grapes onto a display in the area where he fell. The injured plaintiff and his wife,suing derivatively, commenced this action against Waldbaum's, Inc., and its parent company,Great Atlantic and Pacific Tea Co. The defendants moved for summary judgment dismissing thecomplaint on the ground that they neither created the alleged dangerous condition nor had actualor constructive notice of it. The Supreme Court denied the motion. We affirm.
The Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint, since the defendants failed to make a prima facie showing ofentitlement to judgment as a matter of law by tendering evidence sufficient to establish that theiremployees did not create the alleged dangerous condition (see Naletilic v Dan's Key Food, 47 AD3d 903, 904 [2008]; Belogolovkin v 1100-1114 Kings HighwayLLC, 35 AD3d 514, 515 [2006]). A triable issue of fact exists in this regard (seeBelogolovkin v 1100-1114 Kings Highway LLC, 35 AD3d at 515; Marino v Stop & Shop SupermarketCo., 21 AD3d 531, 532 [2005]).
Furthermore, a triable issue of fact exists as to whether the defendants had constructivenotice of the alleged dangerous condition, as they failed to establish the absence of such noticeas a matter of law (see Librandi v Stop& Shop Food Stores, Inc., 7 AD3d 679, 679-680 [2004]). While the defendants' storeand produce managers testified at their depositions to general cleaning and inspectionprocedures, the defendants failed to proffer any evidence regarding when the area in [*2]question was last cleaned or inspected relative to the time when theinjured plaintiff fell (see Holub vPathmark Stores, Inc., 66 AD3d 741, 742 [2009]; Baines v G&D Ventures, Inc., 64 AD3d 528, 529 [2009]; Braudy v Best Buy Co., Inc., 63 AD3d1092 [2009]; Birnbaum v NewYork Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]; Feldmus v Ryan Food Corp., 29AD3d 940, 941 [2006]; Britto vGreat Atl. & Pac. Tea Co., Inc., 21 AD3d 436, 437 [2005]).
The defendants' remaining contentions are without merit. Dillon, J.P., Balkin, Lott and Sgroi,JJ., concur.