Patrick v. Cho's Fruit & Vegetables

Mar 30, 1998
Versions:248 A.D.2d 692
671 N.Y.S.2d 274
1998 N.Y. App. Div. LEXIS 3433

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), dated March 13, 1997, which granted the defendants’ motion pursuant to CPLR 3212 for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff claims that the defendants were negligent in allowing water which they used to wash produce in their store to run off and create a wet surface on the adjacent sidewalk. In order to impose liability upon the defendants, there must be evidence tending to show the existence of a dangerous or defective condition and that the defendants either created the condition or had actual or constructive knowledge of it (see, Gordon v American Museum of Natural History, 67 NY2d 836). The mere fact that the sidewalk was wet was not sufficient to establish a dangerous condition (see, Marks v Andros Broadway, 38 AD2d 926, affd 32 NY2d 727).

With regard to the plaintiffs claim that a vegetable leaf on the sidewalk was an additional cause of her fall, the plaintiff failed to show that the defendants created the condition or had actual or constructive notice thereof (see, Bogart v Woolworth Co., 24 NY2d 936).

Rosenblatt, J. P., Sullivan, Joy and Luciano, JJ., concur.