holding that "mere existence of the soda on the floor at the time of the accident is insufficient to impute notice"Summary of this case from Shimunov v. Home Depot U.S.A, Inc.
January 21, 1992
Appeal from the Supreme Court, Nassau County (Saladino, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted and the complaint, cross claims and counterclaims are dismissed insofar as asserted against the defendant Longwood Associates, Inc.
In this slip and fall case, in order for the plaintiff to make out a prima facie case, he must demonstrate that the defendant Longwood Associates, Inc. (hereinafter Longwood), created the condition which caused the accident or that it had actual or constructive notice of the condition (see, Eddy v. Tops Friendly Mkts., 91 A.D.2d 1203, affd 59 N.Y.2d 692; see also, Lewis v Metropolitan Transp. Auth., 99 A.D.2d 246, 249, affd 64 N.Y.2d 670; Trujillo v. Riverbay Corp., 153 A.D.2d 793). There is no evidence that Longwood created the alleged dangerous condition or that it had actual notice of that condition. Thus, the plaintiff was required to come forth with evidence that Longwood had constructive notice of the condition. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Negri v Stop Shop, 65 N.Y.2d 625, 626; Lewis v. Metropolitan Transp. Auth., supra).
In the instant case, the plaintiff alleged that as he entered an elevator in Longwood's building, he noticed an upright can of soda on the lobby floor near the elevator. After visiting his doctor on the third or fourth floor, the plaintiff descended in the same elevator; and when he stepped out of the elevator, he slipped on a puddle of soda. The plaintiff claimed that there were footprints in the soda, that the soda was dried in many spots and that his hands were sticky from the soda. About an hour had elapsed from the time the plaintiff had first entered the elevator and the time he fell.
These facts are insufficient to establish that Longwood had constructive notice of the spilled soda. The mere existence of the soda on the floor at the time of the accident is insufficient to impute notice to Longwood, and there is no evidence that the puddle of soda was present on the lobby floor when the plaintiff entered or for such a period of time as to give rise to constructive notice (see, Anderson v. Klein's Foods, 73 N.Y.2d 835; Shildkrout v. Board of Educ., 173 A.D.2d 603; Paciocco v Montgomery Ward, 163 A.D.2d 655; Sikora v. Apex Beverage Corp., 282 App. Div. 193, affd 306 N.Y. 917). Balletta, J.P., Rosenblatt, Miller and Ritter, JJ., concur.