Opinion
2013-02-21
Mary BRIGGS, Plaintiff–Appellant, v. PICK QUICK FOODS, INC., Defendant–Respondent.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Gregory C. McMahon of counsel), for appellant. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset (Anton Piotroski of counsel), for respondent.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Gregory C. McMahon of counsel), for appellant. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset (Anton Piotroski of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, RENWICK, FREEDMAN, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered November 15, 2011, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
“A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence” ( Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 500, 856 N.Y.S.2d 573 [1st Dept. 2008] ). Upon such showing, the burden shifts to the party opposing the motion “to raise a triable issue of fact as to the creation of the defect or notice thereof” ( Rodriguez v. 705–7 E. 179th St. Hous. Dev. Fund Corp., 79 A.D.3d 518, 519, 913 N.Y.S.2d 189 [1st Dept. 2010] ).
Plaintiff failed to rebut defendant's prima facie showing that it did not cause or create the defective condition. Her claim on appeal that the store's employees created the allegedly dangerous condition by spraying water on produce prior to her accident is speculative, as she testified that she did not know where the water came from and that did not she see any of defendant's employees prior to her accident ( see Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 436–437, 669 N.Y.S.2d 669 [2d Dept. 1998], lv. denied92 N.Y.2d 805, 677 N.Y.S.2d 780, 700 N.E.2d 319 [1998];cf. Granera v. 32nd St. 99¢ Corp., 46 A.D.3d 750, 751, 848 N.Y.S.2d 344 [2d Dept. 2007] ).
Nor has plaintiff rebutted defendant's prima facie showing that it had no actual or constructive notice of the alleged defective condition ( see Kershner v. Pathmark Stores, 280 A.D.2d 583, 584, 720 N.Y.S.2d 552 [2d Dept. 2001]; Stoerzinger v. Big V Supermarkets, 188 A.D.2d 790, 591 N.Y.S.2d 257 [3d Dept. 1992]; cf. Brockman v. Cipriani Wall St., 96 A.D.3d 576, 577, 947 N.Y.S.2d 34 [1st Dept. 2012] ). The record establishes that defendant did not receive any complaints about the allegedly defective condition before the accident ( see Kerson v. Waldbaums Supermarket, 284 A.D.2d 376, 377, 725 N.Y.S.2d 676 [2d Dept. 2001] ). 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, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Here, plaintiff testified that she did not see water on the floor prior to her fall and did not know how long it was there.
Plaintiff's affidavit was insufficient to raise a triable issue of fact as to the exact site of the accident, because it conflicts with her deposition testimony that the photo at issue depicted only the general, but not the specific accident location ( see Smith v. Costco Wholesale Corp., 50 A.D.3d at 501, 856 N.Y.S.2d 573] ).
Lastly, plaintiff's claim that, in making its prima facie showing, defendant relied upon inadmissable hearsay was not raised before the motion court, and accordingly, will not be considered on appeal ( see e.g. Honique Accessories, Ltd. v. S.J. Stile Assoc., Ltd., 67 A.D.3d 481, 482, 889 N.Y.S.2d 550 [2008] ). Were we to review plaintiff's hearsay argument, we would find it unavailing.
We have considered the parties' remaining contentions and find them unavailing.