| Kokin v Key Food Supermarket, Inc. |
| 2011 NY Slip Op 09278 [90 AD3d 850] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Ester Kokin, Respondent, v Key Food Supermarket, Inc.,Appellant. |
—[*1] DeBrosse & Studley, LLP, Jamaica Estates, N.Y. (Charles M. Geiger of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (F. Rivera, J.), dated February 3, 2011, which denied itsmotion 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.
The plaintiff alleged that on May 28, 2007, she slipped and fell on water in the produce aisleof the defendant's store on Neptune Avenue in Brooklyn.
On its motion for summary judgment dismissing the complaint, the defendant met its primafacie burden of establishing its entitlement to judgment as a matter of law by offering evidencethat it neither created nor had actual or constructive notice of the allegedly dangerous condition(see Gomez v David Minkin ResidenceHous. Dev. Fund Co., Inc., 85 AD3d 1112 [2011]; Freiser v Stop & Shop Supermarket Co., LLC, 84 AD3d 1307,1308 [2011]; Boyar v New York CityTr. Auth., 10 AD3d 625, 626 [2004]). Contrary to the Supreme Court's determination,the plaintiff failed to raise a triable issue of fact in opposition to the defendant's prima facieshowing. In an affidavit submitted in opposition to the defendant's motion, the plaintiff stated forthe first time, in an apparent attempt to show that the alleged condition was created by thedefendant's employees, that on the date of the accident, she had watched store employeesreturning wet vegetables onto the shelves in the aisle where she slipped and fell. This affidavit,stating in essence that she had slipped on water left by the defendant's employees, containeddetails and observations that were different from her deposition testimony. At her deposition, theplaintiff admitted that prior to her fall, she had not seen any employees in the aisle where theaccident occurred, nor had she seen anyone stocking shelves at the time of the accident. Thus, thestatements contained in the plaintiff's affidavit appear to have been an attempt to create a feignedissue of fact specifically designed to avoid the consequences of her earlier deposition testimony(see Freiser v Stop & Shop Supermarket Co., LLC, 84 AD3d at 1308-1309; Capasso v Capasso, 84 AD3d 997,998 [2011]).[*2]
As to the plaintiff's claim that the defendant engaged in aroutine watering of vegetables and that this routine resulted in the alleged wet and slipperycondition of the produce aisle on the date of the accident, the plaintiff's submissions inopposition to the defendant's motion did not raise a triable issue of fact as to constructive noticeunder a recurrent condition theory. Even if the defendant was aware of a recurring watercondition, that, by itself, would not be sufficient to establish constructive notice of the allegedwet condition that caused the plaintiff to slip and fall (see Pinto v Metropolitan Opera, 61 AD3d 949, 950 [2009]; Arrufat v City of New York, 45 AD3d710 [2007]), since a general awareness of a recurring problem is insufficient, without more,to establish constructive notice of the condition causing the fall (see Solazzo v New York City Tr.Auth., 6 NY3d 734, 735 [2005]; Piacquadio v Recine Realty Corp., 84 NY2d967, 969 [1994]).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint. Rivera, J.P., Balkin, Eng and Austin, JJ., concur. [PriorCase History: 30 Misc 3d 1219(A), 2011 NY Slip Op 50123(U).]