Myers v. Waldbaum's, Inc. — 303 A.D.2d 389

Majority

p. 389

Audrey Myers, Appellant, v Waldbaum’s, Inc., Respondent.

[755 NYS2d 862]

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated December 13, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contention, the defendant established, prima facie, its entitlement to judgment as a matter of

p. 390

law by demonstrating the absence of proof that the produce upon which the plaintiff slipped was present on the supermarket floor for a sufficient length of time to support a finding that the defendant had constructive notice of the condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Kerson v Waldbaums Supermarket, 284 AD2d 376 , 377 [2001]). The plaintiffs mere assertions that the produce was brown and appeared to have been stepped on and rolled over by shopping carts failed to raise an issue of fact in opposition to the motion (see Koser v Supermarkets Gen. Corp., 244 AD2d 320 , 321 [1997]; Cuddy v Waldbaum, Inc., 230 AD2d 703 , 704 [1996]; Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280 [1994]). Santucci, J.P., Friedmann, Luciano and Rivera, JJ., concur.

Cases cited

Gordon v. American Museum of Natural History 67 NY2d 836 N.Y. 1986-03-25 p. 390
Koser v. Supermarkets General Corp. 244 AD2d 320 N.Y. App. Div. 1997-11-03 at 321 p. 390
Bykofsky v. Waldbaum's Supermarkets, Inc. 210 AD2d 280 N.Y. App. Div. 1994-12-12 p. 390