King v. Wegmans Food MarKets, Inc.

221 A.D.2d 1013, 634 N.Y.S.2d 281, 1995 N.Y. App. Div. LEXIS 13536

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1995
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiff commenced this action to recover damages for injuries she allegedly sustained when she fell over a basket in defendant’s supermarket. Supreme Court erred in denying defendant’s motion for summary judgment.

Defendant’s submissions in support of the motion for summary judgment, which included an attorney’s affidavit annexing deposition testimony and other proof, satisfied the prima facie showing required to warrant judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 325-326). The proof showed that the store’s front end manager, present at the time of the accident, inspected the area where plaintiff fell and found no basket on the floor. A risk management department employee averred that there were no reported incidents of people tripping over baskets in that area for a two year period prior to plaintiffs accident. Plaintiff testified at an examination before trial that she thought she tripped on a red basket but was not sure and did not pay attention to what it was. We conclude that defendant established that it had no actual or constructive notice of the alleged dangerous condition of the floor and was thus entitled to summary judgment as a matter of law (see, Benware v Big V Supermarkets, 177 AD2d 846; see also, Monje v Wegman’s Enters., 192 AD2d 1133). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.—Summary Judgment.) Present—Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.