Eddy v. Tops Friendly Markets
| Decision Date | 31 January 1983 |
| Citation | 91 A.D.2d 1203,459 N.Y.S.2d 196 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Elmer EDDY and Elizabeth Eddy, Respondents, v. TOPS FRIENDLY MARKETS and Tops Friendly Market, Appellants. |
Hodgson, Russ, Andrews, Woods & Goodyear by Paul Perlman, Buffalo, for appellants.
Peter A. Vinolus, Lackawanna, for respondents.
Before HANCOCK, J.P., and DOERR, DENMAN, BOOMER and SCHNEPP, JJ.
Plaintiff, Elizabeth Eddy, sustained personal injuries when she allegedly slipped on a roll-on deodorant bottle in the aisle of defendant's supermarket. Plaintiff's complaint alleged that defendant had either actual or constructive notice that the bottle was in the aisle. After plaintiff filed a note of issue and a statement of readiness declaring that all pretrial discovery had been completed, defendant moved for summary judgment dismissing the complaint. In support of its motion, defendant relied on the pleadings and on the testimony given at an examination before trial by plaintiff and by Wayne Theal, defendant's assistant manager, who was on duty at the time of plaintiff's accident, to establish that plaintiff had not seen the bottle before she fell and thus had not reported it; that she had no personal knowledge that defendant had actual notice of such object being in the aisle; that no one had informed her that defendant had notice of such object; that Theal had examined the aisle in the area where plaintiff fell and saw no foreign objects; that the shelves were not being stocked during business hours; and that subsequent to her fall plaintiff told him that she did not know what caused her to slip. In opposition to defendant's motion, plaintiff submitted an affidavit of Leonard Eddy, plaintiff's son, who was summoned to the scene after his mother had fallen. He stated that when he went into the store to assist his mother, he noticed that "there were boxes piled up alongside of the aisle, for stock boys to remove items and place them on the shelves."
A party opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Bare conclusions or unsubstantiated allegations are insufficient (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Further, the existence of a factual issue cannot be established on the hearsay information of one with no personal knowledge of the facts (Zuckerman v. City of New...
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