Hendricks v. 691 Eighth Avenue Corp.

226 A.D.2d 192, 640 N.Y.S.2d 525, 1996 N.Y. App. Div. LEXIS 3753

Opinion

Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about January 24, 1995, which, in a slip and fall case, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The affidavits of defendants’ employees that they did not observe any liquid on the stairs of their store leading to the basement, or receive any complaints about the stairs on the day in question, and indeed were not even aware of the incident until receipt of letter from plaintiff’s attorney some five months later, were sufficient to establish defendants’ prima facie entitlement to judgment as a matter of law, shifting the burden to plaintiff to submit evidentiary proof sufficient to establish defendants’ actual or constructive notice of the condition (Alvarez v Prospect Hosp., 68 NY2d 320, 324; Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). Plaintiff does not claim actual notice, and his deposition was insufficient to raise a triable issue as to constructive notice. From the proof presented, a finding that a substance had been on the stairs for any appreciable length of time would be mere speculation. Concur—Ellerin, J. P., Wallach, Kupferman and Williams, JJ.