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Campbell v. Great Atlantic & Pacific Tea Co.

Appellate Division of the Supreme Court of New York, Second Department
Jan 25, 1999
257 A.D.2d 642 (N.Y. App. Div. 1999)

Opinion

January 25, 1999.

Appeals from the Supreme Court, Putnam County (Hickman, J.).


Ordered that the order is reversed, with costs, the motion is granted, and the complaint is dismissed.

The plaintiffs commenced the instant action, inter alia, to recover damages for personal injuries which the injured plaintiff allegedly suffered when she slipped and fell on a piece of banana on the floor in the appellant's supermarket. The appellant moved for summary judgment dismissing the complaint on the ground that it neither created nor had actual or constructive notice of the condition. The Supreme Court denied the motion. We reverse.

The appellant made a prima facie showing affirmatively establishing the absence of notice as a matter of law ( see, Dwoskin v. Burger King Corp., 249 A.D.2d 358; Goldman v. Waldbaum, Inc., 248 A.D.2d 436). Therefore, the burden shifted to the plaintiff to show that the appellant either created or had actual or constructive notice of the condition ( see, Bradish v. Tank Tech Corp., 216 A.D.2d 505; Pirillo v. Longwood Assocs., 179 A.D.2d 744). The plaintiffs failed to come forward with evidence sufficient to raise a triable issue of fact and, consequently, the Supreme Court erred in denying the appellant's motion ( see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837; Anderson v. Klein's Foods, 139 A.D.2d 904, 905, affd 73 N.Y.2d 835; Katsoris v. Waldbaum, Inc., 241 A.D.2d 511, 512; Bernard v. Waldbaum, Inc., 232 A.D.2d 596, 597; Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280; Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698).

Bracken, J.P., Ritter, Santucci and Altman, JJ., concur.


Summaries of

Campbell v. Great Atlantic & Pacific Tea Co.

Appellate Division of the Supreme Court of New York, Second Department
Jan 25, 1999
257 A.D.2d 642 (N.Y. App. Div. 1999)
Case details for

Campbell v. Great Atlantic & Pacific Tea Co.

Case Details

Full title:KATHLEEN CAMPBELL et al., Respondents, v. GREAT ATLANTIC PACIFIC TEA…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 25, 1999

Citations

257 A.D.2d 642 (N.Y. App. Div. 1999)
684 N.Y.S.2d 572

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