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Stoerzinger v. Big V Supermarkets, Inc.

Appellate Division of the Supreme Court of New York, Third Department
Dec 10, 1992
188 A.D.2d 790 (N.Y. App. Div. 1992)

Summary

holding that summary judgment was appropriate, in a case where plaintiff fell on a wet mat at defendant's store, because there was no proof that defendants had notice of the alleged dangerous condition

Summary of this case from Boyko v. Sam's Club-Members Only

Opinion

December 10, 1992

Appeal from the Supreme Court, Columbia County (Cobb, J.).


To establish a prima facie case of negligence in a slip and fall action, plaintiff must demonstrate that defendant had actual or constructive notice of the condition (see, Edwards v Terryville Meat Co., 178 A.D.2d 580; Benware v Big V Supermarkets, 177 A.D.2d 846, 847; Lewis v Metropolitan Transp. Auth., 99 A.D.2d 246, 250, affd on opn below 64 N.Y.2d 670). Initially, we note that there is no evidence that defendant had actual notice of the allegedly dangerous condition. The issue remaining, therefore, is whether plaintiff has established that defendant had constructive notice of the condition which allegedly caused his 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 defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837). Plaintiff testified at his examination before trial that he did not notice any water on the mat prior to his fall. His further testimony that it had been raining for 30 to 40 minutes before he entered the supermarket does not establish when, within that period, the water had allegedly accumulated or that it existed for any length of time so as to give defendant the opportunity to discover and remedy the situation. As such, we find plaintiff's proof insufficient to establish constructive notice (see, Paolucci v First Natl. Supermarket Co., 178 A.D.2d 636; Torri v Big V, 147 A.D.2d 743). Supreme Court's order denying defendant's motion for summary judgment must therefore be reversed and the complaint dismissed (see, Fasolino v Charming Stores, 77 N.Y.2d 847; Benware v Big V Supermarkets, supra).

Weiss, P.J., Levine, Crew III, Mahoney and Harvey, JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.


Summaries of

Stoerzinger v. Big V Supermarkets, Inc.

Appellate Division of the Supreme Court of New York, Third Department
Dec 10, 1992
188 A.D.2d 790 (N.Y. App. Div. 1992)

holding that summary judgment was appropriate, in a case where plaintiff fell on a wet mat at defendant's store, because there was no proof that defendants had notice of the alleged dangerous condition

Summary of this case from Boyko v. Sam's Club-Members Only
Case details for

Stoerzinger v. Big V Supermarkets, Inc.

Case Details

Full title:GARY G. STOERZINGER, Respondent, v. BIG V SUPERMARKETS, INC., Appellant

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 10, 1992

Citations

188 A.D.2d 790 (N.Y. App. Div. 1992)
591 N.Y.S.2d 257

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