Panzella v. Shop Rite Supermarkets, Inc.

238 A.D.2d 490, 657 N.Y.S.2d 926, 1997 N.Y. App. Div. LEXIS 4018

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Cu-sick, J.), dated March 4, 1996, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiffs’ contention that the defendant was not entitled to summary judgment because it failed to included a copy of the pleadings with its motion papers (cf., Lawlor v County of Nassau, 166 AD2d 692; Somers Realty Corp. v Big "V" Props., 149 AD2d 581) has not been preserved for appellate review.

It is well established that for a plaintiff in a slip and fall case to establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant either created the allegedly dangerous condition or had actual or constructive notice of it. To furnish a basis for constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836; Kraemer v K-Mart Corp., 226 AD2d 590; Davis v Supermarkets Gen. Corp., 205 AD2d 730). We agree with the Supreme Court that there is no evidence from which a trier of fact could conclude that the defendant created the condition, or that it had actual or constructive notice of it. Thus, summary judgment was properly awarded to the defendant (see, Kraemer v K-Mart Corp., supra; Davis v Supermarkets Gen. Corp., supra). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.