Wauters v. Shop Rite, Inc.

244 A.D.2d 404, 665 N.Y.S.2d 558, 1997 N.Y. App. Div. LEXIS 11280

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Newmark, J.), dated November 22, 1996, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced the instant action to recover damages for personal injuries allegedly sustained when she slipped and fell on oil which had spilled on the floor of the defendant’s supermarket. In order to establish a prima facie case of negligence, the plaintiff must prove that the defendant either created the condition which caused her fall, or that it had actual or constructive notice of the condition and a reasonable time within which to correct or warn about its existence (see, Piacquadio v Recine Realty Corp., 84 NY2d 967; Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280, 281; Davis v Supermarkets Gen. Corp., 205 AD2d 730, 731). “To constitute 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 defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837). As there was no evidence in the instant case from which one could conclude that the defendant had actual or constructive notice of the oil spill which allegedly caused the plaintiff to fall, the Supreme Court properly granted the defendant’s motion for summary judgment (see, Bykofsky v Waldbaum’s Supermarkets, supra; Davis v Supermarkets Gen. Corp., supra). Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.