Zafiropoulos v. Key Food Stores

Appellate Division of the Supreme Court of New York

Zafiropoulos v. Key Food Stores

5 A.D.3d 679, 774 N.Y.S.2d 730

Appellate Division of the Supreme Court of the State of New York·Decided March 22, 2004·Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs Stergoula Zafiropoulos and John Zafiropoulos appeal from an order of the Supreme Court, Queens County (Grays, J.), dated March 10, 2003, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the appeal by John Zafiropoulos is dismissed, as he is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed, with costs.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created the condition on the floor of their grocery store of an errant black olive on which the injured plaintiff allegedly slipped and fell, nor had actual or constructive notice of it (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In opposition, the injured plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Under the circumstances of this case, the injured plaintiff’s reliance on the doctrine of a recurring dangerous condition is not supported by the record (see Galietta v New York Sports Club, 4 AD3d 449 [2004]; Gloria v MGM Emerald Enters., 298 AD2d 355, 356 [2002]). Ritter, J.P., Goldstein, Townes and Crane, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs Stergoula Zafiropoulos and John Zafiropoulos appeal from an order of the Supreme Court, Queens County (Grays, J.), dated March 10, 2003, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the appeal by John Zafiropoulos is dismissed, as he is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed, with costs.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created the condition on the floor of their grocery store of an errant black olive on which the injured plaintiff allegedly slipped and fell, nor had actual or constructive notice of it (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In opposition, the injured plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Under the circumstances of this case, the injured plaintiff’s reliance on the doctrine of a recurring dangerous condition is not supported by the record (see Galietta v New York Sports Club, 4 AD3d 449 [2004]; Gloria v MGM Emerald Enters., 298 AD2d 355, 356 [2002]). Ritter, J.P., Goldstein, Townes and Crane, JJ., concur.

Zafiropoulos v. Key Food Stores, 5 A.D.3d 679, 774 N.Y.S.2d 730 (N.Y. Ct. App. 2004).

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Opinion

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