Kanarskee v. Pergament Distributors, Inc.

201 A.D.2d 704, 609 N.Y.S.2d 842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1994
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an interlocutory judgment of the Supreme Court, Nassau County (MeCaffrey, J.), entered September 4, 1991, which, after a nonjury trial on the issue of liability, found it to be 50% at fault in the happening of the accident.

Ordered that the interlocutory judgment is reversed, on the law, with costs, and the complaint is dismissed.

The plaintiff Elizabeth Kanarskee was injured when she slipped and fell on a puddle of clear liquid in the appellant’s store. A witness testified that he noticed the liquid on the floor about 10 minutes before the fall.

We find that, as a matter of law, the plaintiffs did not prove that the appellant had constructive notice of the defect. The evidence was too speculative to establish that the defect was in existence for a sufficient length of time prior to the accident to permit the appellant’s employees to discover and remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836; see also, Anderson v Klein’s Foods, 139 AD2d 904, affd 73 NY2d 835; Batiancela v Staten Is. Mall, 189 AD2d 743; Pirillo v Longwood Assocs., 179 AD2d 744). Balletta, J. P., Pizzuto, Friedmann and Krausman, JJ., concur.