Lewis v. Wegmans Food Markets, Inc.

234 A.D.2d 994, 651 N.Y.S.2d 828, 1996 N.Y. App. Div. LEXIS 13782

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1996
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. Plaintiff slipped and fell in front of a mushroom display in the produce section of defendant’s supermarket. The evidence establishes that, moments before plaintiff fell, defendant’s employee had filled the mushroom display and had checked the floor in the surrounding area and found it to be clear of debris, with no fallen mushrooms. Although plaintiff stated that she observed mushrooms on the floor after she fell, "any finding that the [mushrooms] had been on the floor for any appreciable period of time would be mere speculation” (Anderson v Klein’s Foods, 139 AD2d 904, 905, affd 73 NY2d 835, rearg denied 73 NY2d 918). Thus, defendant established that it had no actual or constructive notice of a dangerous condition on the floor, and plaintiff failed to raise a triable issue of fact. (Appeal from Order of Supreme Court, Erie County, Glownia, J.—Summary Judgment.) Present—Lawton, J. P., Fallon, Doerr, Balio and Boehm, JJ.