Opinion
December 30, 1991
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the appeal from the order dated February 25, 1991, is dismissed, as that order was superseded by the order dated May 10, 1991, made upon reargument; and it is further,
Ordered that the order dated May 10, 1991, is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs.
The plaintiff Mary Paolucci allegedly slipped on a piece of a strawberry while walking in the produce aisle of the defendant's store, and fell, injuring her ankle. She alleges that the defendant failed to maintain the floor in safe condition. The Supreme Court granted the defendant's motion for summary judgment on the ground that the plaintiffs had failed to present any evidence to raise a triable issue concerning the defendant's actual or constructive notice of the condition which caused Mary Paolucci's fall (see, Lewis v Metropolitan Transp. Auth., 99 A.D.2d 246, affd 64 N.Y.2d 670; Eddy v Tops Friendly Mkts., 91 A.D.2d 1203, affd 59 N.Y.2d 692). We affirm.
The plaintiffs relied upon a theory of constructive notice. The only proof offered was an excerpt from the transcript of Mary Paolucci's examination before trial and an affidavit by her husband, the plaintiff Fred Paolucci, with whom she had been shopping. Both, however, do no more than tend to establish that there was other fruit and vegetable matter on the floor where Mary Paolucci fell, and that the carpeting in the area was damp. A general awareness that litter may be present is legally insufficient to charge the defendant with notice of the particular condition which is alleged to have caused the accident. The offending strawberry could have been deposited only minutes or seconds before the accident; inasmuch as there was no evidence that it had been present for some period of time beforehand, any other conclusion would be pure speculation (see, Gordon v American Museum of Natural History, 67 N.Y.2d 836; Anderson v Klein's Foods, 139 A.D.2d 904, affd 73 N.Y.2d 835; cf., Negri v Stop Shop, 65 N.Y.2d 625). Therefore, the Supreme Court properly granted the defendant's motion for summary judgment. Thompson, J.P., Bracken, Harwood and Copertino, JJ., concur.