Plaintiff alleges that she slipped in the Graybar Passage of Grand Central Station in the vicinity of Zaro's Bread Basket, owned and operated by defendant Azor Bake Shop. The "Aided Report" completed by the Metro North Police Department states that "[t]here was some sort of stain. The area did not appear to be wet." At a 50-h hearing, plaintiff described the substance as a dry spot: "Six inches, approximately, over a spot about nine inches, approximately." At a subsequent examination before trial, plaintiff was also asked to describe the area, stating, "It was a light substance over a dark substance." At a second examination before trial, she was asked what the substance looked like to her, responding, "Soda. Ice cream on top of soda."

On the respective defendants' motions to dismiss the complaint, Supreme Court perceived plaintiff's subsequent testimony to be a "180 degree shift in her position" and an attempt to retract the admission that "she did not know what caused her to fall." The court ruled that the later testimony "presents only a feigned factual issue designed to avoid the consequences of her earlier admission". The court concluded, "Since the area where plaintiff fell was near a garbage can, the particular debris could have been dropped at any time and since plaintiff has not shown either actual or constructive notice, liability does not lie".

Plaintiff was not obligated to identify the substance that caused her to slip and fall (Colt v. Great Atl. Pac. Tea Co., 209 A.D.2d 294, 295) and such omission cannot be equated with the failure to identify thecause of her fall. Contrary to defendants' suggestion, it is not plaintiff's burden in opposing the motions for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendants' burden to establish the lack of notice as a matter of law (see, Padula v. Big V Supermarkets, 173 A.D.2d 1094, 1095; see also, Hewett v. Conway Stores, 266 A.D.2d 137). Where the defendant neither created the condition nor had actual notice, a defendant seeking to dismiss the complaint must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed (see, O'Rourke v. Williamson, Picket, Gross 260 A.D.2d 260; Deegan v. 336 E. 50th St. Tenants Corp., 216 A.D.2d 59;see also, Gordon v. American Museum of Natural History, 67 N.Y.2d 836).

Plaintiff's testimony that the substance consisted of a light-colored spot with a diameter of six inches on top of a dark-colored spot with a diameter of nine inches constitutes evidence of sufficient particularity that the condition was visible and apparent. The consistent description of the substance as a "stain" and "dry" and "solid" is evidence from which a jury would be warranted in finding that the condition had been present for a substantial period of time and, together with testimony that the area where plaintiff fell is subject to regular inspection and cleaning, is sufficient to allow a finding of constructive notice to defendants (Pirrelli v. Long Is. R.R., 226 A.D.2d 166; Giambrone v. New York Yankees, 181 A.D.2d 547).

Finally, testimony by defendant Azor's vice president that its obligation to provide cleaning services did not extend beyond the premises occupied by the Zaro's bakery is contradicted by the language of its Revocable Permit Agreement with Metro North, which imposes a duty to keep "the area adjacent to the Premises in good order and condition so that at all times the Premises are clean, free of vermin and present no hazardous condition."

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.