Opinion
3733.
Decided May 25, 2004.
Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about September 30, 2003, which denied, in part, defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Law Offices of Steven G. Fauth, New York (John H. Shin of counsel), for appellants.
Michael G. O'Neill, New York (Edward P. Kelly of counsel), for respondents.
Before: Mazzarelli, J.P., Saxe, Sullivan, Marlow, Gonzalez, JJ.
In view of the evidence indicating that plaintiff slipped on an accumulation of dirty, discolored water on the floor of the produce aisle of defendants' supermarket, and the testimony of a store employee to the effect that the produce on display was kept fresh with ice, some of which may have fallen to the floor and melted, causing the complained-of hazard, a triable issue is raised as to whether defendants created or otherwise had notice of the hazard ( see Navedo v. 250 Willis Ave. Supermarket, 290 A.D.2d 246). We decline to reach defendants' argument as to the timeliness of plaintiffs' disclosure of a notice witness since the argument is raised for the first time on appeal. We would note, however, that the notice witness was clearly identified as a potential witness at plaintiff's deposition, while discovery was still ongoing and before the note of issue was filed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.