Berg v. Wegmans Food Markets, Inc.

Sep 30, 1997
Versions:242 A.D.2d 861
662 N.Y.S.2d 897
1997 N.Y. App. Div. LEXIS 10387

Order unanimously affirmed without costs. Memorandum: Plaintiffs appeal from an order granting defendant’s motion for summary judgment dismissing the complaint. Plaintiffs commenced this action to recover damages for injuries sustained by Julia W. Berg (plaintiff) when she allegedly slipped on liquid soap and fell in defendant’s Canandaigua store. It is undisputed that defendant lacked actual notice of the dangerous condition, and defendant met its burden of establishing lack of constructive notice (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). The assertion of plaintiff in her affidavit that the “sudsy water” was dirty and had stained her clothes is insufficient to raise a question of fact whether defendant had constructive notice (see, Collins v Grand Union Co., 201 AD2d 852, 853).

Defendant also met its burden of establishing that it did not create the dangerous condition. Plaintiff’s conclusory assertion that the “puddle of dirty, sudsy water was left on the floor after the floor was cleaned” is insufficient to raise a triable issue of fact whether defendant created the dangerous condition (see, Kaufman v Man-Dell Food Stores, 203 AD2d 532, 533). (Appeal from Order of Supreme Court, Ontario County, Harvey, J.— Summary Judgment.) Present—Denman, P. J., Pine, Balio, Boehm and Fallon, JJ.