Altieri v. Golub Corporation

• Decision Date: 14 March 2002
• Citation: 292 A.D.2d 734,741 N.Y.S.2d 126
• Parties: TONI A. ALTIERI, Appellant,<BR>v.<BR>GOLUB CORPORATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

292 A.D.2d 734

741 N.Y.S.2d 126

TONI A. ALTIERI, Appellant,

v.GOLUB CORPORATION et al., Respondents.

Peters, J.P.

Decided March 14, 2002.

Carpinello, Mugglin, Rose and Lahtinen, JJ., concur.

Peters, J.P.

Plaintiff commenced this personal injury action as a result of a slip and fall caused by a foreign substance on the floor of the produce section of defendants' store. After joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion and plaintiff appeals.

In order to recover in a personal injury action based upon a slip and fall on a foreign substance, a plaintiff must ultimately establish that the defendant either created the condition which caused the fall or had actual or constructive notice of it (see, Davis v Golub Corp., 286 AD2d 821). When a defendant moves for summary judgment dismissing the complaint in such an action, however, it is the defendant, as the proponent of the motion, who bears the initial burden of establishing a prima facie entitlement to judgment (see, Williams v Hannaford Bros. Co., 274 AD2d 649; see also, Zuckerman v City of New York, 49 NY2d 557, 562). On such a motion, the burden shifts to the plaintiff only when the defendant satisfies this initial burden by demonstrating that it neither created the condition nor had actual or constructive notice of the condition (see, e.g., Forester v Golub Corp., 267 AD2d 526; Bashaw v Rite Aid of N.Y., 207 AD2d 632).

Defendants submitted evidence that the floor was inspected and found to be clean approximately half an hour before plaintiff's fall which, standing alone, would ordinarily be sufficient to meet defendants' initial burden (see, e.g., Van Winkle v Price Chopper Operating Co., 239 AD2d 692). Their motion papers, however, contain additional evidence which reveals their failure to demonstrate entitlement to judgment as a matter of law. The accident report noted that two store employees were working in the area at the time of plaintiff's fall and, according to plaintiff's deposition testimony, one of the employees was loading produce into the display cases. Plaintiff testified that she had "just passed by" this employee when she fell and that she believed it was a spinach leaf that caused her to slip and fall. Although the employee's deposition testimony discloses that he had no recollection of the incident or what he was doing at the time, the accident report noted that he found a piece of spinach on the floor...