Opinion
August 4, 1994
Appeal from the Supreme Court, Rockland County (Lefkowitz, J.).
Plaintiff was injured when she fell while attempting to return a bag of cucumbers to the produce section of defendant's store, where she had gone to shop. Later that day at the emergency room her granddaughter found what appeared to be a crushed grape on the bottom of her shoe. In response to defendant's motion for summary judgment dismissing her complaint, plaintiff failed to demonstrate that defendant had created the condition or had notice, either actual or constructive, of the condition that caused or contributed to her fall (see, Anderson v. Klein's Foods, 73 N.Y.2d 835, affg on mem below 139 A.D.2d 904). Creation of such a condition, or actual or constructive notice thereof, is essential to the imposition of liability on defendant (see, Paolucci v. First Natl. Supermarket Co., 178 A.D.2d 636; Scirica v Ariola Pastry Shop, 171 A.D.2d 859). Accordingly, we affirm the order of Supreme Court which granted defendant's motion for summary judgment dismissing plaintiff's complaint.
Mikoll, J.P., Mercure, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.