Prame v. Ames Department Stores, Inc.

176 A.D.2d 1215

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1991
• Status: Published

Opinion

— Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants summary judgment and dismissed plaintiffs’ complaint seeking damages for injuries sustained in a slip and fall accident. There is no evidence that defendants had actual or constructive notice of the defective condition that allegedly caused the accident (see, Anderson v Klein’s Foods, 73 NY2d 835, rearg denied 73 NY2d 918; Gordon v American Museum of Natural History, 67 NY2d 836; Negri v Stop & Shop, 65 NY2d 625). Plaintiffs’ reliance upon the doctrine of res ipsa loquitur is inappropriate and misplaced. Plaintiffs did not make that argument before Supreme Court and should not now be permitted to make it for the first time on appeal (see, Arvantides v Arvantides, 106 AD2d 853, mod 64 NY2d 1033). In any event, res ipsa loquitur is not applicable on the facts presented (see, Dermatossian v New York City Tr. Auth., 67 NY2d 219, 227-228). (Appeal from Order of Supreme Court, Erie County, Joslin, J. — Summary Judgment.) Present — Doerr, J. P., Boomer, Green, Lawton and Davis, JJ.