Opinion
October 4, 1991
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Doerr, J.P., Boomer, Green, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants summary judgment and dismissed plaintiffs' complaint seeking damages for injuries sustained in a slip and fall accident. There is no evidence that defendants had actual or constructive notice of the defective condition that allegedly caused the accident (see, Anderson v Klein's Foods, 73 N.Y.2d 835, rearg denied 73 N.Y.2d 918; Gordon v American Museum of Natural History, 67 N.Y.2d 836; Negri v Stop Shop, 65 N.Y.2d 625). Plaintiffs' reliance upon the doctrine of res ipsa loquitur is inappropriate and misplaced. Plaintiffs did not make that argument before Supreme Court and should not now be permitted to make it for the first time on appeal (see, Arvantides v Arvantides, 106 A.D.2d 853, mod 64 N.Y.2d 1033). In any event, res ipsa loquitur is not applicable on the facts presented (see, Dermatossian v New York City Tr. Auth., 67 N.Y.2d 219, 227-228).