| Lee v Port Chester Costco Wholesale |
| 2011 NY Slip Op 01804 [82 AD3d 842] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Insook Lee et al., Appellants, v Port Chester CostcoWholesale et al., Respondents. |
—[*1] Thomas M. Bona, P.C., White Plains, N.Y. (James C. Miller and Michael Flake of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Kitzes, J.), entered February 5, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burdenof making a prima facie showing that it neither created the dangerous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it" (Van Dina v St. Francis Hosp., Roslyn,N.Y., 45 AD3d 673, 674 [2007]; see Torre v Huguenot Props., Inc., 77AD3d 732 [2010]; Sloane v CostcoWholesale Corp., 49 AD3d 522, 523 [2008]; Doherty v Great Atl. & Pac. TeaCo., 265 AD2d 447, 448 [1999]). Here, the defendants established their prima facieentitlement to judgment as a matter of law by demonstrating that they neither created nor hadactual or constructive notice of the condition alleged by the injured plaintiff to have caused theaccident based on, inter alia, evidence that frequent inspections for debris and tripping hazardswere performed by store employees on the date of the accident, but prior to the accident (seeGordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Perez v Walgreen Co., 56 AD3d634, 635 [2008]; Sloane v Costco Wholesale Corp., 49 AD3d at 523; Popovec v Great Atl. & Pac. Tea Co.,Inc., 26 AD3d 321 [2006]; Bykofsky v Waldbaum's Supermarkets, 210 AD2d280, 281 [1994]). The plaintiffs' contentions regarding the admissibility of certain documentssubmitted in support of the motion for summary judgment are not properly before this Court, asthe plaintiffs failed to raise those contentions in response to the defendants' motion (see Fletcher v Westbury Toyota, Inc.,67 AD3d 730, 730-731 [2009]; Matter of Mercury Ins. Group v Ocana, 46 AD3d 561, 562 [2007];Weber v Jacobs, 289 AD2d 226, 227 [2001]).
In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triableissue of fact as to whether the defendants created or had actual or constructive notice of thecondition, as the plaintiffs submitted no proof of the length of time that the condition that isalleged to have caused the accident—food on the floor—was present (see Perezv Walgreen Co., 56 AD3d at 635; Sloane v [*2]CostcoWholesale Corp., 49 AD3d at 523; Frazier v City of New York, 47 AD3d 757, 758 [2008];Bykofsky v Waldbaum's Supermarkets, 210 AD2d at 281). The affidavit of the plaintiffs'expert, who opined that the presence of debris in certain areas of the building would violatevarious regulations, failed to raise a triable issue of fact, as there was no evidence that thedefendants had notice of the presence of any such debris. In addition, although the expert opinedthat a hazardous condition was created by the alleged slope of the floor in conjunction with thefood that was there, any evidence as to the slope of the floor was not shown to be causally relatedto the accident, as the injured plaintiff did not testify at her deposition that the slope of the floorcaused her to fall (see Raghu v NewYork City Hous. Auth., 72 AD3d 480, 482 [2010]).
Further, the plaintiffs' contention that the evidence submitted by them raised triable issues offact as to whether a recurring dangerous condition caused the accident was not raised inopposition to the defendants' summary judgment motion. Consequently, this contention is notproperly before this Court (see Fletcher v Westbury Toyota, Inc., 67 AD3d at 730-731;Matter of Mercury Ins. Group v Ocana, 46 AD3d at 562; Weber v Jacobs, 289AD2d at 227). Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Mastro, J.P., Skelos, Eng and Sgroi, JJ., concur.