Luttman v. Red Apple Supermarkets, Inc.

210 A.D.2d 204, 620 N.Y.S.2d 267, 1994 N.Y. App. Div. LEXIS 12340

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the supreme Court, Westchester County (Burchell, J.H.O.), dated October 26, 1992, which, after bifurcated jury trials on the issues of liability and damages, is in favor of the plaintiffs and against the defendant in the principal sum of $50,537.61.

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

On or about September 5, 1989, the plaintiff Doris Luttman allegedly slipped on a piece of discolored vegetation and fell while walking through the produce aisle of the defendant’s supermarket. In order to establish the defendant’s liability, the plaintiffs were required to prove that the defendant created the condition which caused the accident or had actual or constructive notice of the condition (see, Batiancela v Staten Is. Mall, 189 AD2d 743).

We find that the plaintiffs failed to sustain their burden of proof. There is no evidence that the defendant created the allegedly dangerous condition or had actual notice of it. Nor was there sufficient evidence to create a jury question as to whether the defendant had constructive notice.

We find no merit to the plaintiffs’ remaining contentions. Ritter, J. P., Santucci, Friedmann and Goldstein, JJ., concur.