Opinion
CA 02-02670.
November 21, 2003.
Appeal from an order of Supreme Court, Monroe County (Frazee, J.), entered September 6, 2002, which granted the motions of defendants Burlington Coat Factory Warehouse Corporation and Genesee Management, Inc. for summary judgment dismissing the complaints against them.
Faraci Lange, LLP, Rochester (Joseph A. Regan of Counsel), for Plaintiffs-Appellants.
Richard G. Vogt, P.C., Rochester (Linda J. Vogt of Counsel), for Defendant-Respondent Burlington Coat Factory Warehouse Corporation.
Trevett, Lenweaver Salzer, P.C., Rochester (Thomas N. Trevett of Counsel), for Defendant-Respondent Genesee Management, Inc.
Before: Present: Hurlbutt, J.P., Scudder, Kehoe, Gorski, and Lawton, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly granted the motions of Burlington Coat Factory Warehouse Corporation (Burlington) and Genesee Management, Inc. (collectively, defendants) for summary judgment dismissing the complaints against them. Plaintiffs commenced these actions seeking damages for injuries allegedly sustained by Annette Lane (plaintiff) when she slipped and fell on water in an aisle of a store leased by Burlington. Defendants met their initial burden of establishing that they neither created the dangerous condition nor had actual or constructive notice of it ( see Kovelsky v. City Univ. of N.Y., 221 A.D.2d 234, 235; Collins v. Grand Union Co., 201 A.D.2d 852). Plaintiffs failed to raise a triable issue of fact whether defendants had constructive notice of a recurring dangerous condition, inasmuch as they failed to establish that Burlington had knowledge that, on prior occasions, water had accumulated on the floor in the area where plaintiff fell ( see Hammer v. KMart Corp., 267 A.D.2d 1100, lv denied 95 N.Y.2d 757). In addition, plaintiffs failed to raise an issue of fact whether the water was apparent for a long enough period of time to permit Burlington's employees to discover and remove it ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838).