Myers v. Waldbaum's, Inc.

Appellate Division of the Supreme Court of New York

Myers v. Waldbaum's, Inc.

303 A.D.2d 389, 755 N.Y.S.2d 862

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 3, 2003

StatusPublished

Cited by2 cases

This text of 303 A.D.2d 389 (Myers v. Waldbaum's, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Myers v. Waldbaum's, Inc., 303 A.D.2d 389, 755 N.Y.S.2d 862 (N.Y. Ct. App. 2003).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated December 13, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contention, the defendant established, prima facie, its entitlement to judgment as a matter of [390]*390law by demonstrating the absence of proof that the produce upon which the plaintiff slipped was present on the supermarket floor for a sufficient length of time to support a finding that the defendant had constructive notice of the condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Kerson v Waldbaums Supermarket, 284 AD2d 376, 377 [2001]). The plaintiffs mere assertions that the produce was brown and appeared to have been stepped on and rolled over by shopping carts failed to raise an issue of fact in opposition to the motion (see Koser v Supermarkets Gen. Corp., 244 AD2d 320, 321 [1997]; Cuddy v Waldbaum, Inc., 230 AD2d 703, 704 [1996]; Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280 [1994]). Santucci, J.P., Friedmann, Luciano and Rivera, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated December 13, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contention, the defendant established, prima facie, its entitlement to judgment as a matter of [390]*390law by demonstrating the absence of proof that the produce upon which the plaintiff slipped was present on the supermarket floor for a sufficient length of time to support a finding that the defendant had constructive notice of the condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Kerson v Waldbaums Supermarket, 284 AD2d 376, 377 [2001]). The plaintiffs mere assertions that the produce was brown and appeared to have been stepped on and rolled over by shopping carts failed to raise an issue of fact in opposition to the motion (see Koser v Supermarkets Gen. Corp., 244 AD2d 320, 321 [1997]; Cuddy v Waldbaum, Inc., 230 AD2d 703, 704 [1996]; Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280 [1994]). Santucci, J.P., Friedmann, Luciano and Rivera, JJ., concur.

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Bluebook (online)

303 A.D.2d 389, 755 N.Y.S.2d 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-waldbaums-inc-nyappdiv-2003.

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