Opinion
January 11, 1993
Appeal from the Supreme Court, Richmond County, Amann, J., Cusick, J.
Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.
In this "slip-and-fall" case, in order for the plaintiff to make out a prima facie case, she had to demonstrate that the defendants created the condition which caused the accident or that they had actual or constructive notice of the condition (see, Pirillo v. Longwood Assocs., 179 A.D.2d 744). There is no evidence that the defendants either created the allegedly dangerous condition or had actual notice of the condition. Thus, the plaintiff was required to produce evidence showing that the defendants had constructive knowledge of the alleged dangerous condition.
The plaintiff asserts that she slipped and fell on ice cream which had melted on a terrazzo tile floor. Contrary to the plaintiff's contentions, melted ice cream which is in a "pool", and "sticky", does not constitute a defect which is visible and apparent and in existence "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; Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249, affd 64 N.Y.2d 670). This is especially true in this case, since the melted ice cream was allegedly vanilla and had melted on a beige and white floor. The mere existence of ice cream on the floor of the mall without further evidence as to the length of time the ice cream was present does not constitute evidence of constructive notice (see, Anderson v. Klein's Foods, 73 N.Y.2d 835; Pirillo v. Longwood Assocs., supra; Shildkrout v. Board of Educ., 173 A.D.2d 603).
In light of our determination, we need not reach the defendants' remaining contentions. Balletta, J.P., Eiber, O'Brien and Santucci, JJ., concur.