Opinion
April 25, 1994
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the order is affirmed, with costs.
The plaintiff Solomon R. Kaufman allegedly slipped and fell on a yellow lily which was on the floor of the defendant's store, sustaining personal injuries as a result. At an examination before trial, Mr. Kaufman testified that when he first entered the store, he saw one of the defendant's employees cleaning a green substance from the area where he later fell, but had left that area while the man was still sweeping up. He fell on the lily 15 minutes later. In an affidavit in opposition to the defendant's motion for summary judgment, Mr. Kaufman stated that he slipped and fell on a yellow lily, which he had not seen prior to his fall, and that after the fall, he observed that the flower was "smashed [and] flattened out as if it had been trodden upon and was dirty". The defendant's employee testified at his examination before trial that he had swept the area of the accident approximately 30 to 45 minutes before it happened, and had not been informed by anyone that the flower was on the floor prior to the accident.
Contrary to the plaintiffs' contention, it was incumbent upon them to come forth with evidence that the defendant had either created the allegedly dangerous condition or that it had actual or constructive notice of it, and the mere fact that the defendant had not cleaned the area for 45 minutes, or the fact that the flower appeared smashed and dirty after the accident, were both insufficient to raise a triable issue with respect to notice to the defendant (see, Anderson v Klein's Foods, 139 A.D.2d 904, affd 73 N.Y.2d 835). There was no evidence that the defendant had created the allegedly dangerous condition, or had actual notice of it prior to the accident, and from the evidence which was presented, any finding that the lily had been on the floor for any appreciable period of time would be mere speculation; the evidence was just as consistent with a finding that someone had dropped the lily on the floor and had stepped on it shortly before Mr. Kaufman fell. It is well settled that, without evidence that the defendant created the dangerous condition or had actual notice of it, and absent a showing of evidentiary facts from which a jury can infer constructive notice from the amount of time that the dangerous condition existed, the complaint must be dismissed (see, Fasolino v Charming Stores, 77 N.Y.2d 847, 848; see also, Cafiero v Inserra Supermarkets, 195 A.D.2d 681, affd 82 N.Y.2d 787; Batiancela v Staten Is. Mall, 189 A.D.2d 743, 743-744; Edwards v Terryville Meat Co., 178 A.D.2d 580; Paolucci v First Natl. Supermarket Co., 178 A.D.2d 636; Monje v Wegman's Enters., 192 A.D.2d 1133; Grimes v Golub Corp., 188 A.D.2d 721, 722; Grier v Macy Co., 173 A.D.2d 238; cf., Catanzaro v King Kullen Grocery Co., 194 A.D.2d 584, 584-585; Farrar v Teicholz, 173 A.D.2d 674, 676). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment.
There is no merit to the plaintiffs' remaining contention. Sullivan, J.P., O'Brien, Goldstein and Florio, JJ., concur.