Opinion
2002-06891
Submitted February 25, 2003.
August 25, 2003.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated June 24, 2002, which denied its motion for summary judgment dismissing the complaint.
Greenfield Reilly, Jericho, N.Y. (Charles T. Ruhl of counsel), for appellant.
Michael A. Cervini, Jackson Heights, N.Y. (Robin Mary Heaney of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, NANCY E. SMITH, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant had stacked shopping baskets outside of its store for customer use, and some of those baskets were scattered about the sidewalk. The plaintiff tripped and fell over one of the scattered baskets. The plaintiff commenced this action and, after discovery, the defendant moved for summary judgment on the ground that it neither created nor had notice of the condition that caused the plaintiff's fall or, alternatively, that the condition was open and obvious as a matter of law. The Supreme Court denied the motion. We reverse.
The defendant demonstrated, prima facie, that it neither created nor had actual or constructive notice of the condition that caused the plaintiff to fall. In an affidavit, the defendant's store manager stated that he did not know who scattered the baskets on the sidewalk, was unaware of baskets having been scattered prior to the accident, and was unaware of any complaints having been made concerning baskets on the sidewalk. Additionally, the plaintiff testified at her examination before trial that she had not noticed the basket over which she tripped before she fell and, therefore, could not establish how long the basket had been there before her accident.
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant affirmatively placed shopping baskets on the sidewalk other than in a stacked condition or created a dangerous condition by stacking the shopping baskets outside of its store ( see Yearwood v. Cushman Wakefield, 294 A.D.2d 568; Kraemer v. K-Mart Corp., 226 A.D.2d 590). The plaintiff also failed to raise an issue of fact as to whether the defendant had received any prior complaints regarding this condition so as to charge it with actual notice. Moreover, to constitute constructive notice, a condition must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836; Yearwood v. Cushman Wakefield, 294 A.D.2d 568). In the absence of proof as to the length of time the basket was on the sidewalk, the plaintiff failed to raise a triable issue of fact as to whether the defendant had constructive notice of the condition on which the plaintiff fell ( see McDuffe v. Fleet Fin. Group, Inc., 269 A.D.2d 575; Maguire v. Southland Corp., 245 A.D.2d 347).
Accordingly, the defendant was entitled to summary judgment dismissing the complaint.
In light of the foregoing, we need not reach the defendant's remaining contention.
SANTUCCI, J.P., FEUERSTEIN, SMITH and LUCIANO, JJ., concur.