Sosa v. GOLUB CORPORATION
| Decision Date | 29 June 2000 |
| Citation | 273 A.D.2d 762,710 N.Y.S.2d 171 |
| Court | New York Supreme Court — Appellate Division |
| Parties | ALBERT SOSA, Appellant,<BR>v.<BR>GOLUB CORPORATION et al., Respondents. |
On September 18, 1997, at approximately 8:15 P.M., plaintiff was allegedly injured when he slipped and fell on the wet floor of a produce aisle in defendants' supermarket in the City of Oneonta, Otsego County. Plaintiff then commenced this action, alleging in his complaint that defendants had allowed water from adjoining produce displays to accumulate and cause an "undetectable slippery water condition" on the floor of the aisle.
Following his deposition of two of the supermarket's managers, defendants moved for summary judgment dismissing the action. Finding that plaintiff had failed to present proof that defendants either created the slippery condition or had actual or constructive notice of the condition, Supreme Court granted the motion. Plaintiff appeals.
"In a case such as this involving a slip and fall accident, to establish a prima facie case plaintiff was required to show either actual or constructive notice of the condition causing the fall and this necessitated proof that defendant created the condition or that it had a reasonable opportunity to remedy the situation" (Grimes v Golub Corp., 188 AD2d 721, 721-722; see, Gordon v American Museum of Natural History, 67 NY2d 836, 837).
In support of the motion, defendants submitted the sworn statements of four of the supermarket's managers. The affidavit and deposition testimony of Gerald Losee, the assistant grocery manager, asserted that plaintiff told Losee he had fallen on water in an area in front of a salad display case, that plaintiff pointed out the water on the floor and that Losee had observed the water to be about three inches in diameter. Losee also stated that there were no overhead nozzles used to spray a mist of water onto fresh produce in the vicinity of plaintiff's fall, that defendants had not placed the water on the floor and that defendants had no prior knowledge of the water on which plaintiff fell.
Defendants also presented the affidavit and deposition testimony of Jeffrey Cuddy, the store's produce manager, stating that the wet spot in question was six to eight feet away from the salad display case and was 16 to 20 feet away from the fresh produce section where a misting system was being used. He also stated that the spot was four or five inches in diameter, that there was no source of water in its vicinity and that there was no water on the floor when he had last inspected the produce department 15 to 20 minutes before plaintiff fell. Both Losee and Cuddy asserted that they observed no other water on the floor in the produce aisle that night. All four of the managers averred that they had never received any prior complaints about the misting equipment malfunctioning or causing slippery conditions and that they had never observed water accumulating on the floor as a result of the use of that equipment.
Since this evidence satisfied defendants' initial burden of establishing prima facie that they did not create or have notice of the wet floor which caused plaintiff's injury (see, Zuckerman v City of New York, 49 NY2d 557, 562), the burden shifted to plaintiff to submit evidentiary proof in admissible form raising a triable issue of fact as to whether defendants created or...
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