Milea v. Ames Dept. Store, Inc.

• Decision Date: 29 September 1995
• Citation: 632 N.Y.S.2d 363,219 A.D.2d 798
• Parties: Linda MILEA and Frank Milea, Respondents, v. AMES DEPARTMENT STORE, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 363

632 N.Y.S.2d 363

219 A.D.2d 798

Linda MILEA and Frank Milea, Respondents, v. AMES DEPARTMENT STORE, INC., Appellant.

Supreme Court, Appellate Division Fourth Department.

Sept. 29, 1995.

Fixler and Gulino, L.L.P. by Frank Gulino (Stockfield & Fixler, of counsel), Carmel, for Appellant.

Hiscock and Barclay, by Diane VanEpps, Syracuse, for Respondents.

Before DENMAN, P.J., and PINE, WESLEY, BALIO and DAVIS, JJ.

MEMORANDUM:

Linda Milea (plaintiff) slipped and fell on bath oil beads while shopping in defendant's store and commenced this action to recover damages for her injuries. Five months after plaintiffs filed a note of issue and a statement of readiness certifying that discovery was complete, defendant moved for summary judgment on the ground that it had no actual or constructive notice of bath oil beads on the floor. Supreme Court erred in denying that motion. Defendant met its initial burden of showing that it had no actual or constructive notice of the alleged hazardous condition of the floor (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795; Monje v. Wegman's Enters., 192 A.D.2d 1133, 596 N.Y.S.2d 273; Walton v. Wegman's Food Mkts., 191 A.D.2d 1040, 595 N.Y.S.2d 349), and plaintiffs failed to raise an issue of fact in response thereto.

With respect to actual notice, defendant offered proof that none of its employees was aware of the presence of bath oil beads on the floor before plaintiff fell. Plaintiffs showed only that two unidentified employees and the store manager learned of the condition of the floor after plaintiff fell (see, Fasolino v. Charming Stores, 77 N.Y.2d 847, 567 N.Y.S.2d 640, 569 N.E.2d 443; Grimes v. Golub Corp., 188 A.D.2d 721, 590 N.Y.S.2d 590). With respect to constructive notice, there is no evidence concerning when the bath oil beads fell on the floor and thus no basis to conclude that they had been on the floor a sufficient length of time so that in the exercise of due care defendant should have known of and corrected the condition (see, Anderson v. Klein's Foods, 73 N.Y.2d 835, 537 N.Y.S.2d 481, 534 N.E.2d 319, affg. 139 A.D.2d 904, 527 N.Y.S.2d 897 for reasons stated below; Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774). Evidence that unpackaged bath oil beads were scattered on shelves next to where plaintiff fell establishes only that defendant had a "general awareness" that the beads might fall to the floor (see, Piacquadio v. Recine Realty Corp., supra; Snyder v. Golub Corp., 199 A.D.2d 776, 777, 605 N.Y.S.2d 166, lv. denied 83 N.Y.2d 754, 612 N.Y.S.2d 108, 634 N.E.2d 604).

We reject plaintiffs' contention that alleged discrepancies in the evidence warrant denial of the motion for summary judgment; those alleged discrepancies are irrelevant to the issue whether defendant had notice of bath oil beads on the floor. We also reject plaintiffs' contention that the motion was properly denied as...