Kane v. Human Services Center, Inc.

• Decision Date: 05 October 1992
• Citation: Kane v. Human Services Center, Inc., 588 N.Y.S.2d 361, 186 A.D.2d 539 (N.Y. App. Div. 1992)
• Parties: Theresa KANE, et al., Respondents, v. HUMAN SERVICES CENTER, INCORPORATED, doing business as St. Cosmo and Damian Adult Home, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 361

588 N.Y.S.2d 361

186 A.D.2d 539

Theresa KANE, et al., Respondents, v. HUMAN SERVICES CENTER, INCORPORATED, doing business as St Cosmo and Damian Adult Home, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 5, 1992.

Miller, Harten & Harten, New York City (Milton H. Miller, on the brief), for appellant.

Lemole, McCarthy, Magnotti & Peter J. Napolitano, Staten Island (Joseph Manno, of counsel), for respondents.

Before THOMPSON, J.P., and SULLIVAN, BALLETTA and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Cusick, J.), dated September 12, 1990, which denied its motion for summary judgment.

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

In this so-called "slip and fall" case, in order for the injured plaintiff to make out a prima facie case, she must be able to demonstrate that the defendant had created the condition which caused the accident or that it 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, affd. 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243; see also Lewis v. Metropolitan Transportation Authority, 99 A.D.2d 246, 249, 472 N.Y.S.2d 368, affd. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612; Trujillo v. Riverbay Corp., 153 A.D.2d 793, 545 N.Y.S.2d 2).

The injured plaintiff herein alleged that, as she was walking down a hallway in the defendant's nursing home, she suddenly felt her foot slip and turn in, causing her to fall. After she had fallen, she noticed a small round puddle of a clear, odorless liquid on the floor nearby. Significantly, there is no other evidence which would indicate that she actually stepped in the puddle. The injured plaintiff never noticed the puddle until after the accident, nor did she show that the puddle had been on the floor for any length of time.

These facts are insufficient to establish that the defendant had actual or constructive notice of the puddle. The mere existence of the puddle on the floor is insufficient to impute notice to the defendant, and there is no evidence that the liquid was present on the hallway floor for such a period of time as to give rise to constructive notice (see, Fasolino v. Charming Stores, 77 N.Y.2d 847, 567 N.Y.S.2d 640, 569 N.E.2d 443; Anderson v....