Bykofsky v. Waldbaum's Supermarkets, Inc.
| Decision Date | 12 December 1994 |
| Citation | 210 A.D.2d 280,619 N.Y.S.2d 760 |
| Parties | Estelle BYKOFSKY, et al., Appellants, v. WALDBAUM'S SUPERMARKETS, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Steinberg, Fineo, Bykofsky & Burlant, P.C., Mineola (Michael Barone, of counsel), for appellants.
Kral, Clerkin, Redmond, Ryan, Perry and Girvan, Mineola (James J. Girvan, on the brief), for respondent.
Before JOY, J.P., and FRIEDMANN, KRAUSMAN and FLORIO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Segal, J.), dated July 20, 1993, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On the afternoon of July 23, 1991, the plaintiff Estelle Bykofsky was shopping in the produce aisle of the defendant's supermarket when she slipped and fell, sustaining injuries. At her examination before trial, Mrs. Bykofsky testified that she slipped on some squashed pieces of dark-colored fruit. Although Mrs. Bykofsky observed water on the floor of the produce aisle, she did not testify that she stepped in the water prior to her accident, and she did not indicate that the water had caused her fall.
Contrary to the plaintiffs' contention, the Supreme Court properly granted the defendant's motion for summary judgment. In order for a plaintiff in a "slip and fall" case to establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition (see, Eddy v. Tops Friendly Markets, 91 A.D.2d 1203, 459 N.Y.S.2d 196, aff'd 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243; Capitelli v. King Kullen Grocery Co., 207 A.D.2d 325, 615 N.Y.S.2d 417; Batiancela v. Staten Island Mall, 189 A.D.2d 743, 592 N.Y.S.2d 66). 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, 501 N.Y.S.2d 646, 492 N.E.2d 774). Here, however, there is no evidence that the fruit which allegedly caused Mrs. Bykofsky's fall had been on the floor for any appreciable length of time. While Mrs. Bykofsky described the fruit as "squashed", the evidence was just as...
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DeEscobar v. Westland S. Shore Mall, L.P.
...Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 [2d Dept 1986]; Bykofsky v. Waldbaum's Supermarkets, Inc., 210 A.D.2d 280, 619 N.Y.S.2d 760 [2d Dept 1994])). Liability can be predicated only on failure of the defendant to remedy the danger after actual or const......
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