Opinion
2003-01554.
Decided March 22, 2004.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Dutchess County (Dolan, J.), dated January 14, 2003, which denied its motion for summary judgment dismissing the complaint.
Carter, Conboy, Case, Blackmore, Maloney Laird, P.C., Albany, N.Y. (William J. Decaire of counsel), for appellant. Larkin, Axelrod, Trachte Tetenbaum, LLP, Newburgh, N.Y. (Adam Garth of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., HOWARD MILLER, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff allegedly was injured when he tripped and fell in one of the defendant's stores. At his deposition, the plaintiff testified that he was unable to see exactly what caused him to fall because it was covered by paper and plastic packing materials used to wrap crates. He also testified that he tripped over something that was either on the floor or sticking out of a shelf.
Contrary to the plaintiffs' contention, the defendant established its prima facie entitlement to summary judgment through the deposition testimony of its sales associate and assistant manager who testified that they routinely cleaned the store aisles. The sales associate to whom the injured plaintiff reported the accident also testified that when he arrived at the scene immediately thereafter, he did not see any materials or debris on the floor, only empty pallets on the side of the aisle ( see Manzione v. Wal-Mart Stores, 295 A.D.2d 484; Roa v. Waldbaum, Inc., 293 A.D.2d 735; Monte v. T.J. Maxx, 293 A.D.2d 722; Connizzo v. K-Mart Corp., 290 A.D.2d 527). In response, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' contention that the defendant's employees created the allegedly dangerous condition by leaving paper and plastic removed from the nearby pallet on the floor was too speculative to raise an issue of fact ( see Portanova v. Dynasty Meat Corp., 297 A.D.2d 792; Sieber v. Estee Lauder, Inc., 293 A.D.2d 596). Additionally, the plaintiffs did not put forth any evidence that the defendant had actual or constructive notice of the alleged dangerous condition, or that it was a recurring dangerous condition ( see Gloria v. MGM Emerald Enters., 298 A.D.2d 355). Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been granted.
ALTMAN, J.P., H. MILLER, COZIER and MASTRO, JJ., concur.