Onley v. Shopwell, Inc.
| Decision Date | 21 March 2005 |
| Docket Number | 2004-04127. |
| Citation | 792 N.Y.S.2d 156,2005 NY Slip Op 02236,16 A.D.3d 565 |
| Parties | HILDA ONLEY, Appellant, v. SHOPWELL, INC., Doing Business as A & P SUPERMARKET, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
The plaintiff slipped and fell on a piece of fruit in the produce aisle of the defendants' premises. In response to the defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the defendants created the alleged defect or had actual or constructive notice of it (see Moss v JNK Capital, 211 AD2d 769 [1995]; affd 85 NY2d 1005 [1995]; see also Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [1998]; Katsoris v Waldbaum, Inc., 241 AD2d 511, 512 [1997]). The defendants' general awareness that fruit sometimes fell onto the floor of their premises was insufficient to raise a triable issue of fact as to whether they had notice of the specific condition which caused the plaintiff to fall (see Halperin v Waldbaum's Supermarket, 236 AD2d 514, 515 [1997]; compare McLaughlan v Waldbaums, Inc., 237 AD2d 335, 336 [1997]; Chin v Harp Mktg., 232 AD2d 601, 602 [1996]).
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