Stasiak v. Sears, Roebuck & Co.

281 A.D.2d 533, 722 N.Y.S.2d 251, 2001 N.Y. App. Div. LEXIS 2648

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2001
• Status: Published

Opinions

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Garson, J.), dated January 5, 2000, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff slipped and fell in a puddle of white latex paint which had spilled on the sidewalk outside the exit door of the defendant’s store. Upon being made aware of the spill, the defendant’s employees acted in a reasonable manner by placing several warning cones at the site of the spill, giving oral warnings to the public of its existence and beginning the process of obtaining mops and buckets to clean it. It is uncontroverted that the plaintiff slipped and fell not more than 90 seconds after the spill occurred and during the time in which the defendant’s employees had begun the remedial efforts.

In a slip and fall case, a plaintiff must demonstrate that the defendant created the dangerous condition which caused the accident or had actual or constructive notice of that condition and failed to remedy it within a reasonable time (see, Gordon v American Museum of Natural History, 67 NY2d 836; Birthwright v Mid-City Sec., 268 AD2d 401; see also, Lupi v Home Creators, 265 AD2d 653; see generally, LoSquadro v Roman Catholic Archdiocese, 253 AD2d 856). The defendant demonstrated that it did not create the hazard and, although it had actual notice of the spill, the defendant’s employees did not have a reasonable time to remedy it. Here, in opposition to the defendant’s prima facie case for summary judgment, the plaintiff failed to raise a triable issue of fact as to whether the defendant was afforded a reasonable time to remedy the hazard. Additionally, there was no duty on the part of the defendant to warn the plaintiff of the hazard because it constituted an open and obvious condition which the plaintiff could easily have observed by employing the reasonable use of her senses (see, Paulo v Great Atl. & Pac. Tea Co., 233 AD2d 380). Therefore, the defendant is entitled to summary judgment dismissing the complaint. Ritter, J. P., S. Miller and Smith, JJ., concur.