SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

121 

CA 10-01935 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ. 

 

MARIA R. KING AND JEANERO J. KING, 

PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

SAM’S EAST, INC., DEFENDANT-RESPONDENT. 

 

HOGAN WILLIG, AMHERST (AMANDA L. LOWE OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS. 

BROWN & HUTCHINSON, ROCHESTER (KIMBERLY J. CAMPBELL OF COUNSEL), FOR

DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Niagara County

(Richard C. Kloch, Sr., A.J.), entered December 18, 2009 in a personal

injury action. The order granted defendant’s motion for summary

judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying the motion in part and

reinstating the complaint insofar as it alleges that defendant had

constructive notice of the allegedly dangerous condition and as

modified the order is affirmed without costs. 

Memorandum: Maria R. King (plaintiff) and her husband commenced

this action seeking damages for injuries plaintiff allegedly sustained

when she slipped and fell on an accumulation of water that had formed

a puddle on the floor of defendant’s store. We conclude that Supreme

Court erred in granting defendant’s motion for summary judgment

dismissing the complaint to the extent that the complaint alleges that

defendant had constructive notice of the allegedly dangerous condition

where plaintiff fell (see Brinson v Geneva Hous. Auth., 45 AD3d 1397),

and we therefore modify the order accordingly.

“In seeking summary judgment dismissing the complaint, defendant

had the initial burden of establishing that it did not create the

alleged dangerous condition and did not have actual or constructive

notice of it” (Pelow v Tri-Main Dev., 303 AD2d 940, 940-941). 

Contrary to plaintiffs’ contention, defendant met its initial burden

on the issues whether defendant created or had actual notice of the

allegedly dangerous condition, and plaintiffs failed to raise a

triable issue of fact with respect thereto inasmuch as their

submissions in opposition were merely speculative (see Cerkowski v

Price Chopper Operating Co., 68 AD3d 1382, 1384-1385; Baia v Allright
-2- 121 

CA 10-01935 

Parking Buffalo, Inc., 27 AD3d 1153, 1154). 

We agree with plaintiffs, however, that defendant failed to meet

its initial burden of establishing that it lacked constructive notice

of the condition in question. It is well established that, “[t]o

constitute constructive notice, a defect must be visible and apparent

and it must exist for a sufficient length of time prior to the

accident to permit defendant’s employees to discover and remedy it”

(Gordon v American Museum of Natural History, 67 NY2d 836, 837). In

support of its motion, defendant submitted, inter alia, the deposition

testimony of plaintiff in which she stated that, although she did not

observe the water on the floor prior to her fall, after the fall her

right pant leg was saturated with liquid and she observed a “dinner

plate size of water” on the floor. Defendant also submitted the

deposition testimony of one of its employees in which the employee

stated that, while helping plaintiff after her fall, he observed a

“small puddle” of water that “wasn’t readily noticeable.” He also

testified, however, that “you could see [the water] once you looked

for it.” In addition, although defendant submitted the deposition

testimony of the produce manager in which she testified that, on the

morning in question, she performed an inspection of the area and

observed no water and that store employees conducted safety sweeps,

there is no evidence of the timing of the safety sweeps or that her

inspection occurred before plaintiff’s fall (cf. Cochetti v Wal-Mart

Stores, Inc., 24 AD3d 852, 853). Thus, by its own submissions,

defendant raised an issue of fact whether the allegedly dangerous

condition was visible and apparent and existed for a sufficient length

of time prior to plaintiff’s fall to permit its employees to discover

and remedy it (see generally Russo v YMCA of Greater Buffalo, 12 AD3d

1089, lv dismissed 5 NY3d 746).

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court