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Nearchou v. Broadway Mall Properties, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Mar 30, 2000
270 A.D.2d 468 (N.Y. App. Div. 2000)

Opinion

Submitted February 18, 2000

March 30, 2000

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), dated February 16, 1999, which denied its motion for summary judgment dismissing the complaint.

Richard J. Baldwin, Hauppauge, N.Y. (Neil L. Coscio of counsel), for appellant.

Sanders, Sanders, Block Woycik, P.C., Mineola, N.Y. (Michael Villeck of counsel), for respondents.

GABRIEL M. KRAUSMAN, J.P., HOWARD MILLER, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

To establish a prima facie case of negligence in a "slip-and-fall" action, a plaintiff must demonstrate that the defendant either created the condition that caused the accident or had actual or constructive notice thereof (see, Eddy v. Tops Friendly Mkts., 91 A.D.2d 1203, affd 59 N.Y.2d 692 ; Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280 ).

The plaintiffs, relying upon a theory of constructive notice, failed to rebut the defendant's showing that small spots of clear water were not visible and apparent and had not existed for a sufficient length of time before the accident to permit the defendant's employees to discover and remedy the allegedly dangerous condition (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836 ; Paciello v. May Dept. Stores Co., 263 A.D.2d 533 ; Kane v. Human Servs. Ctr., 186 A.D.2d 539 ; cf.,Batiancela v. Staten Is. Mall, 189 A.D.2d 743 ). Accordingly, the defendant's motion for summary judgment should have been granted.

KRAUSMAN, J.P., H. MILLER, SCHMIDT, and SMITH, JJ., concur.


Summaries of

Nearchou v. Broadway Mall Properties, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Mar 30, 2000
270 A.D.2d 468 (N.Y. App. Div. 2000)
Case details for

Nearchou v. Broadway Mall Properties, Inc.

Case Details

Full title:EUGENIA NEARCHOU, ET AL., respondents, v. BROADWAY MALL PROPERTIES, INC.…

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

Date published: Mar 30, 2000

Citations

270 A.D.2d 468 (N.Y. App. Div. 2000)
705 N.Y.S.2d 286

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