Kraemer v. K-Mart Corp.

• Decision Date: 22 April 1996
• Docket Number: K-MART
• Citation: 226 A.D.2d 590,641 N.Y.S.2d 130
• Parties: Sally KRAEMER, et al., Appellants, v.CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 130

641 N.Y.S.2d 130

226 A.D.2d 590

Sally KRAEMER, et al., Appellants, v. K-MART CORPORATION, Respondent.

Supreme Court, Appellate Division Second Department.

April 22, 1996.

Norych and Tallis, Brooklyn and Young and Young, New York City (Sanford F. Young and Jan B. Rothman, of counsel), for appellants (one brief filed).

Before MILLER, J.P., and JOY, HART and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), dated March 29, 1995, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

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, affd. 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243; Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 619 N.Y.S.2d 760). 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).

Applying these principles to the instant case, we find that the Supreme Court properly granted the defendant's motion for summary judgment. Here, the record reveals that the injured plaintiff was shopping in the defendant's store when she slipped on a small piece of cardboard or a plastic store ticket which had fallen to the floor in the vicinity of the shoe department. The injured plaintiff did not notice the cardboard or the store ticket on the floor prior to her fall, and there is no evidence of how long the cardboard and plastic ticket had been on the floor. Accordingly, it would be speculative to infer that these items had been on the floor for any appreciable length of time (see, Anderson v. Klein's Foods, 139 A.D.2d 904, 527 N.Y.S.2d 897, aff'd 73 N.Y.2d 835, 537 N.Y.S.2d 481, 534 N.E.2d 319; Rotunno v. Pathmark, 220 A.D.2d 570, 632 N.Y.S.2d 224 [2d Dept., 1995]; Milea v. Ames Dept. Store, 219 A.D.2d 798, 632 N.Y.S.2d 363 [4th Dept., 1995]. Moreov...