Esformes v. King Kullen Grocery Co.

264 A.D.2d 437, 693 N.Y.S.2d 455, 1999 N.Y. App. Div. LEXIS 8687

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 16, 1999
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Dunne, J.), dated August 12, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

In order “ ‘[t]o prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition’ ” (Goldman v Waldbaum, Inc., 248 AD2d 436, 437; see, Bradish v Tank Tech Corp., 216 AD2d 505, 506). On a motion for summary judgment to dismiss the complaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, Goldman v Waldbaum, Inc., supra).

Here, the defendant met that burden. In opposition to the motion, the plaintiff offered only speculation that the wet substance on the floor which allegedly caused her to fall had existed for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836; Beck v Waldbaum’s, Inc., 238 AD2d 294; Rotunno v Path-mark, 220 AD2d 570). The Supreme Court therefore properly granted the defendant’s motion for summary judgment dismissing the complaint. O’Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.