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Stumacher v. Waldbaum, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Jul 31, 2000
274 A.D.2d 572 (N.Y. App. Div. 2000)

Opinion

Submitted June 9, 2000.

July 31, 2000.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 12, 2000, as denied its cross motion for summary judgment dismissing the complaint.

Sobel Kelly, P.C. (David M. Goldman, Huntington, N.Y., of counsel), for appellant.

Gallagher Gosseen Faller Kaplan Crowley, Garden City, N Y (David H. Arntsen and Alan D. Kaplan of counsel), for respondent.

Before: LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

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

To establish a prima facie case of negligence, a plaintiff in a slip and fall action must demonstrate that the defendant either created the condition which caused the accident, or had actual or constructive notice of the condition (see, Goldman v. Waldbaum, Inc., 248 A.D.2d 436; Kraemer v. K-Mart Corp., 226 A.D.2d 590). To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time before the accident to permit the defendant or its employees to discover and remedy it (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837). On a motion for summary judgment to dismiss the complaint based upon a lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, Bachrach v. Waldbaum, 261 A.D.2d 426; Goldman v. Waldbaum, supra). In the instant case, the defendant met that burden.

The plaintiff, in opposition, submitted no evidence tending to raise an issue of fact that the defendant created or had actual notice of the allegedly dangerous condition that caused her to fall. In the absence of evidentiary facts from which constructive notice may be inferred from the length of time the condition existed, the complaint must be dismissed (see, Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280; Moss v. JNK Capital, 211 A.D.2d 769).


Summaries of

Stumacher v. Waldbaum, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Jul 31, 2000
274 A.D.2d 572 (N.Y. App. Div. 2000)
Case details for

Stumacher v. Waldbaum, Inc.

Case Details

Full title:RUTH STUMACHER, RESPONDENT, v. WALDBAUM, INC., APPELLANT

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

Date published: Jul 31, 2000

Citations

274 A.D.2d 572 (N.Y. App. Div. 2000)
716 N.Y.S.2d 573

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