Williams v. Waldbaums Supermarkets, Inc.

236 A.D.2d 605, 653 N.Y.S.2d 962, 1997 N.Y. App. Div. LEXIS 1517

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1997
• Status: Published

Opinions

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated August 14, 1995, which denied its motion for summary judgment dismissing the complaint.

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

The plaintiff brought this action to recover damages for injuries she allegedly sustained when she slipped and fell on a broken bottle of lemon juice. The Supreme Court improperly denied the defendant’s motion for summary judgment on the basis that there was a triable issue of fact as to constructive notice of the condition which allegedly caused the plaintiff’s fall. "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 the defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837). Here, the defendant met its burden of establishing its lack of awareness of the existence of a defect at the time and place of the occurrence. In opposition, the plaintiff failed to adduce any evidence in admissible form that anyone, including the plaintiff, had seen the juice on the floor prior to her fall. Moreover, absent any proof that the juice was dirty, or had footprints or wheel marks in it, a jury could not reasonably infer that it had been on the floor for any appreciable length of time to permit the defendant’s employees to discover and remedy it (see, Gordon v American Museum of Natural History, supra; Masotti v Waldbaums Supermarket, 227 AD2d 532).

The Supreme Court improperly found that the alleged comments made by the defendant’s store manager shortly after the accident, as testified to by the plaintiff, raised a triable issue as to whether the defendant had constructive notice of the hazardous condition. The plaintiff failed to adduce sufficient evidence in admissible form that the store manager had the authority to make the comments in question so as to bind the defendant or to support her argument that the comments could properly be used to establish notice (see, Loschiavo v Port Auth., 86 AD2d 624, affd 58 NY2d 1040; Gottlieb v Waldbaums Supermarket, 226 AD2d 344; Golden v Horn & Hardart Co., 244 App Div 92, affd 270 NY 544; Richardson, Evidence § 8-208 [Farrell 11th ed]). Mangano, P. J., Miller and Altman, JJ., concur.