| Freiser v Stop & Shop Supermarket Co., LLC |
| 2011 NY Slip Op 04628 [84 AD3d 1307] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Marion Freiser, Respondent, v Stop & Shop SupermarketCompany, LLC, Appellant. |
—[*1] Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Tanenbaum, J.), entered September 23, 2010, which deniedits motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
At approximately 12:00 p.m. on August 10, 2007, the plaintiff, upon entering the Stop &Shop supermarket in West Babylon, New York, which was owned and operated by the defendant,Stop & Shop Supermarket Company, LLC, allegedly slipped and fell in an area between theentrance and the cash registers. It is undisputed that it had been raining on the day of the accidentand the supermarket's parking lot was wet. The plaintiff commenced this action to recoverdamages for personal injuries, alleging that a wet and dangerous condition existed on the floor inthe supermarket and caused her accident. After joinder of issue, the defendant moved forsummary judgment, arguing, inter alia, that it lacked constructive notice of the alleged condition.
"In a slip-and-fall case, the defendant moving for summary judgment has the burden ofdemonstrating, prima facie, that it did not create the alleged hazardous condition or have actualor constructive notice of its existence for a sufficient length of time to discover and remedy it"(Zerilli v Western Beef Retail, Inc., 72 AD3d 681, 681 [2010]; see Yacovelli vPathmark Stores, Inc., 67 AD3d 1002 [2009]).
The defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating, through the deposition testimony and affidavit of an employee, as well as theaffidavit of its store manager, both of whom were after-the-accident witnesses, that it neithercreated the alleged hazardous condition nor had actual or constructive notice of it. According tothe employee, there was no accumulation of water at the location of the plaintiff's fall when sheobserved the subject area approximately 15 minutes before the accident. Moreover, the employeedid not see any wet condition on the floor after the plaintiff had fallen, but did notice that thesoles of the plaintiff's shoes were wet. Additionally, the store manager stated that she had notbeen notified of any spill on the floor in the area in question prior to the [*2]accident. Further, in her deposition testimony, which was submittedby the defendant, the plaintiff stated that she slipped on water, but she did not give any additionaldescription of the condition.
Contrary to the Supreme Court's determination, the plaintiff failed to raise a triable issue offact. The plaintiff, in an affidavit submitted in opposition to the defendant's motion, stated, forthe first time, in an apparent attempt to show that the alleged condition existed for a while priorto her fall, that it had "spec[k]s of mud" within it as well as multiple muddy footprints and"wagon track marks" around it. This affidavit, stating in essence that she had slipped on muddywater as opposed to water alone, contained details and observations that were different from herdeposition testimony. As such, it constituted an attempt to create a feigned issue of factspecifically designed to avoid the consequences of her earlier deposition testimony (see Ruckv Levittown Norse Assoc., LLC, 27 AD3d 444, 445 [2006]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint. Angiolillo, J.P., Florio, Belen and Roman, JJ., concur.