Opinion
2003-03633.
Decided March 22, 2004.
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.
Latos Latos DiPippo, P.C., Astoria, N.Y. (Peter Latos of counsel), for appellant Stergoula Zafiropoulos.
Jennings, Hockett, Kannengieser, Schuster Tafuri (Diamond, Cardo, King, Peters Fodera, New York, N.Y. [Deborah F. Peters] of counsel), for respondents.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
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 N.Y.2d 851, 853). In opposition, the injured plaintiff failed to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562). 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, A.D.3d [2d Dept, Feb. 17, 2004]; Gloria v. MGM Emerald Enters., 298 A.D.2d 355, 356).
RITTER, J.P., GOLDSTEIN, TOWNES and CRANE, JJ., concur.