State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 520492 

________________________________

DORON S. ZUPAN,

Respondent,

v

MEMORANDUM AND ORDER

PRICE CHOPPER OPERATING CO.,

INC.,

Appellant.

________________________________

Calendar Date: September 16, 2015

Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

__________

Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,

Albany (Jonathan E. Hansen of counsel), for appellant.

Mack & Associates, Albany (Lucas G. Mihuta of counsel), for

respondent.

__________

Clark, J.

Appeal from an order of the Supreme Court (McGrath, J.),

entered June 5, 2014 in Rensselaer County, which denied

defendant's motion for summary judgment dismissing the complaint.

Plaintiff commenced this action seeking damages for

injuries she allegedly sustained when she slipped and fell on

water as she exited defendant's grocery store. Following joinder

of issue and discovery, defendant moved for summary judgment

dismissing the complaint. Supreme Court denied defendant's

motion finding, among other things, that there was a question of

fact as to whether defendant had notice of the allegedly

dangerous condition. Defendant now appeals and we affirm.
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"It is well settled that in cases involving a slip and fall

as the result of a slippery or foreign substance on a supermarket

floor, the plaintiff must establish that the defendant either

created the allegedly dangerous condition or had actual or

constructive notice of it" (Collins v Grand Union Co., 201 AD2d

852, 852 [1994] [citations omitted]; accord Davis v Golub Corp.,

286 AD2d 821, 821 [2001]; Tkach v Golub Corp., 265 AD2d 632, 633

[1999]; see McMullin v Martin's Food of S. Burlington, Inc., 122

AD3d 1103, 1104 [2014]). In support of its motion, defendant

submitted all of the available evidence in the case including,

but not limited to, the deposition transcripts of plaintiff and

Danielle Mackey, a cashier at the grocery store and plaintiff's

cousin, and a statement that Mackey wrote shortly after

plaintiff's fall. Defendant asserts, as it did before Supreme

Court, that neither Mackey's written statement nor the oral

statement that she made to plaintiff at the time of the fall

should have been considered, as they both constitute inadmissible

hearsay and, as such, violate the well-established standard that

evidence must be tendered in admissible form (see CPLR 3212;

Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Initially, "[t]he requirements for admission of a

memorandum of a past recollection are generally stated to be that

the witness observed the matter recorded, the recollection was

fairly fresh when recorded or adopted, the witness can presently

testify that the record correctly represented his [or her]

knowledge and recollection when made, and the witness lacks

sufficient present recollection of the recorded information"

(People v Taylor, 80 NY2d 1, 8 [1992]; see Morse v Colombo, 31

AD3d 916, 917 [2006]). Here, Mackey testified that, beyond being

upset that her cousin was hurt, she was unable to remember the

particulars of the event, but she did recall filling out and

signing a document recording her memories at the time. In this

document, Mackey averred that she watched plaintiff fall by the

Coinstar machine in an area that had been checked by the frontend maintenance crew approximately one hour prior to the

incident. In the blank space next to the words "Condition at the

time of last check prior to accident:" Mackey wrote, "ice machine

is always leaking." Mackey recalled completing this document

within days of the incident and explained that the form did not

help to refresh her recollection of the events. On this basis,
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we agree with Supreme Court's ruling that Mackey's written

statement was admissible as a past recollection recorded and, as

such, properly considered in the context of defendant's motion

for summary judgment (compare Davis v Golub Corp., 286 AD2d at

822; Walker v Golub Corp., 276 AD2d 955, 957 [2000]).

Further, in keeping with the principles that, "[t]o grant

summary judgment, it must clearly appear that no material and

triable issue of fact is presented" (Glick & Dolleck v Tri-Pac

Export Corp., 22 NY2d 439, 441 [1968]) and such motion should be

denied if there is any doubt as to the existence of such issues

(see Phillips v Kantor & Co., 31 NY2d 307, 311 [1972]), we

likewise find no error in Supreme Court's consideration of

Mackey's oral statement, notwithstanding its likely

inadmissibility at trial. With that said, however, we

acknowledge that, although "hearsay evidence that is inadmissible

at trial may be sufficient to defeat a motion for summary

judgment, there must be some additional competent evidence to

support the motion or an excuse for the failure to present proof

in admissible form" (Saint James' Episcopal Church v F.O.C.U.S.

Found., 47 AD3d 1058, 1059 [2008]; see Towne v Kinglsey, 121 AD3d

1381, 1382-1383 [2014]). 

At her deposition, plaintiff testified that, after falling,

she noticed water on her hand and asked Mackey where water would

be coming from, to which Mackey replied, "The only thing that's

over there is the ice machine."1 According to plaintiff, Mackey

also related, among other things, that the "ice machine [was]

broken and that she had [previously] asked someone to clean up

the water from it." Plaintiff further described how, after

Mackey brought her to a bench inside the store and seated her on

it, Mackey returned with a front-end supervisor and manager and

again stated that the ice machine had been leaking, that she had

asked someone to clean it up and was not sure if that person had

done so.

1 It is undisputed that there is no ice machine at the

front of defendant's store but, rather, a freezer in which bags

of ice are available for purchase.
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Agreeing with Supreme Court that these statements cannot be

admitted pursuant to any exception to the hearsay rule, we also

agree that such statements are sufficiently corroborated so as to

permit their consideration in the context of the summary judgment

motion. Specifically, the record contains testimony from Sandra

O'Neil, the manager of defendant's store at the time, who

remembered observing a small amount of water on the floor just

after plaintiff's fall and, further, recalled previous occasions

when the freezer had leaked and water had accumulated in front of

it. The accident report authored by O'Neil similarly indicates

that plaintiff fell on water in front of the Coinstar machine. 

Additionally, the record also contains an incident report

authored by Jacqueline Currie, the front-end supervisor at

defendant's store, that states – albeit somewhat innocuously –

"Don't know if she fell in front of ice machine. There was a wet

spot and it was mopped with wet floor sign." Thus, contrary to

defendant's contentions on appeal, Supreme Court did not err in

considering the aforementioned statements in this limited

context, as there is other admissible proof in the record to

establish that there was water on the floor near the Coinstar

machine at the time of plaintiff's fall.

In light of the foregoing, we agree that summary judgment

dismissing the complaint is not warranted. Even if defendant met

its prima facie burden, viewing the proof in the light most

favorable to the nonmovant (see Candelario v Watervliet Hous.

Auth., 46 AD3d 1073, 1074 [2007]), we find that plaintiff's

submissions raised questions of fact as to whether defendant

maintained the premises in a reasonably safe condition and

whether it created or had actual or constructive notice of the

allegedly dangerous condition (see Knapp v Golub Corp., 72 AD3d

1260, 1262 [2010]). We reject defendant's contention that

summary judgment is appropriate as plaintiff is unable to

establish the source of the water on the floor.

Lahtinen, J.P., Egan Jr. and Devine, JJ., concur.
-5- 520492 

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court