| Beckerleg v Tractor Supply Co. |
| 2013 NY Slip Op 04402 [107 AD3d 1208] |
| June 13, 2013 |
| Appellate Division, Third Department |
| Tom Beckerleg, Respondent, v Tractor Supply Company,Appellant. |
—[*1] Feldman, Kleidman & Coffey, LLP, Fishkill (Marsha Solomon Weiss of counsel),for respondent.
Lahtinen, J.P. Appeal from an order of the Supreme Court (Cahill, J.), entered March30, 2012 in Ulster County, which denied defendant's motion for summary judgmentdismissing the complaint.
Plaintiff allegedly slipped and fell on dry dog food that had spilled from a brokenbag into an aisle at defendant's store. He commenced this negligence action seekingdamages for injuries that he claims he sustained in the fall. Following disclosure,defendant moved for summary judgment dismissing the complaint contending that it hadneither actual nor constructive notice of the spilled dog food. Supreme Court foundfactual issues regarding constructive notice and thus denied defendant's motion.Defendant appeals.
We affirm. "As the proponent of a motion for summary judgment, defendant had theinitial burden to make a prima facie showing that it neither created nor had actual orconstructive notice of the allegedly dangerous condition that purportedly causedplaintiff's fall" (Edwards v Wal-Mart Stores, 243 AD2d 803, 803 [1997] [internalquotation marks and citation omitted]; see Flahive v Union Coll., 99 AD3d 1151, 1152 [2012]).With respect to constructive notice, "a defect must be visible and apparent and it mustexist for a sufficient length of time prior to the accident to permit defendant's employeesto discover and remedy it" (Walker v Golub Corp., 276 AD2d 955, 956 [2000][internal quotation marks and citation omitted]; see Tate v Golub Props., Inc., 103 AD3d 1080, 1081[2013]). The evidence is viewed in the light most favorable to [*2]plaintiff as the party opposing summary judgment and hereceives "the benefit of every reasonable inference" (Tenkate v Tops Mkts., LLC, 38 AD3d 987, 989 [2007]; see Anderson v SkidmoreColl., 94 AD3d 1203, 1204 [2012]).
Plaintiff's accident allegedly occurred between 2:00 p.m. and 3:00 p.m. on April 13,2008. He testified at his deposition that he was looking at store shelves and, upon startingdown the aisle where the dog food was located, he slipped and fell as he was taking hissecond step down that aisle. He looked at the dog food spill after falling and estimatedthe size of the spill as covering four to five feet. The record also includes the depositiontestimony of Calvin Brooks, who stated that he was in the store between 10:30 a.m. andnoon on the same day as plaintiff's accident. Brooks, who was an acquaintance ofplaintiff, remembered seeing dried dog food spilled on the floor in the same aisle whereplaintiff later fell.
Defendant urges that Brooks's testimony is insufficient to raise a factual issue sinceBrooks recalled the spill as being located at the beginning of the aisle and he estimatedthe size as one to two feet. Viewed most favorably to plaintiff, it is reasonable to inferthat two witnesses' memories and descriptions regarding a spill they had seen about threeyears before testifying about it might not be exactly the same, and a difference in locationof one to two steps is not so significant as to compel the conclusion that they weredescribing two different spills. Further, the differences in the size of the spill recalled bythe two individuals could have resulted from, among other reasonable explanations, moredog food falling from the torn bag during the course of the day. There was proof that theaisles were supposedly checked by store employees about every half hour and thepurported spill was not detected or cleaned. We agree with Supreme Court that there arefactual issues regarding whether defendant had constructive notice of the dog food spillupon which plaintiff allegedly fell. The remaining arguments are academic.
McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.