Beck v. Waldbaum's, Inc.

238 A.D.2d 294, 656 N.Y.S.2d 926, 1997 N.Y. App. Div. LEXIS 3427

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Phelan, J.), dated May 29, 1996, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff Paula Beck allegedly sustained injuries when she slipped and fell in a puddle of water on the floor of the defendant’s store. Although the plaintiffs do not allege that the defendant created the hazardous condition, they do claim that because two stock boys employed by the defendant were working in the vicinity of the spill, the defendant had actual notice of the hazardous condition.

Contrary to the plaintiffs’ contention, there was no evidence that the defendant had actual notice of the condition prior to the accident (see, Moss v JNK Capital, 211 AD2d 769, affd 85 NY2d 1005). Moreover, from the evidence which was presented, any finding that the spill had been on the floor for any appreciable period of time would be mere speculation (see, Moss v JNK Capital, supra). It is well settled that where, as here, there is no evidence that the defendant created the dangerous condition or had actual notice of it, and absent a showing of evidentiary facts concerning the amount of time that the dangerous condition existed from which a jury could infer constructive notice, the complaint must be dismissed (see, Gordon v American Museum of Natural History, 67 NY2d 836; Edwards v Terryville Meat Co., 178 AD2d 580). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Miller, J. P., Thompson, Joy and Luciano, JJ., concur.