Porco v. Marshalls Department Stores

Jun 22, 2006
Versions:

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered September 16, 2005, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff allegedly slipped on a clear liquid substance in the aisle of defendants’ store. The record, including plaintiff‘s description of the configuration of the substance and defendants’ witness‘s observation of the same, indicates that the substance was visible and apparent. Plaintiff‘s failure to notice the hazard prior to her fall did not conclusively establish defendants’ lack of notice (see Wade-Westbrooke v Eshaghian, 21 AD3d 817 [2005]). Nor did the other evidence offered by defendant. Although defendants’ store manager testified that the store was cleaned daily, that it was the responsibility of the employees to clean up as needed, and that he walked around the aisles on a regular basis, he did not testify as to how often the aisles were checked or about the activities of the employees on the date in question. Defendants offered no testimony from the employees working that day who, presumably, could have offered testimony regarding the last time the aisle was checked prior to the accident (see Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436, 437 [2005]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004]; Deluna-Cole v Tonali, Inc., 303 AD2d 186 [2003]; Jacques v Richal Enters., 300 AD2d 45, 46 [2002]). Concur—Buckley, P.J., Tom, Andrias, Gonzalez and Sweeny, JJ.