2005 WL 646331 (N.Y.A.D. 2 Dept.), 2005 N.Y. Slip Op. 02236

Supreme Court, Appellate Division, Second Department , New York .

Hilda ONLEY, appellant,

v.

SHOPWELL, INC., d/b/a A & P Supermarket, et al., respondents.

March 21, 2005.


Background: Customer brought action against supermarket owner to recover for injuries allegedly sustained when she slipped and fell on a piece of fruit in produce aisle of supermarket. The Supreme Court, Westchester County , La Cava, J., granted owner's motion for summary judgment, and customer appealed.

Holding: The Supreme Court, Appellate Division, held that owner's general awareness that fruit sometimes fell onto floor of premises was insufficient to raise triable issue of fact as to whether owner had notice of specific condition which caused customer to fall.
Affirmed.



 Key Number graphic228 Judgment
 Key Number graphic228k0 k.

Supermarket owner's general awareness that fruit sometimes fell onto floor of premises was insufficient to raise triable issue of fact as to whether owner had notice of specific condition which caused customer to fall, as required to preclude summary judgment in customer's action to recover for injuries allegedly sustained when she slipped and fell on piece of fruit in produce aisle of supermarket.
James Hoffmaier (Neva Hoffmaier, New York , N.Y. , of counsel), for appellant.
Boeggeman, George, Hodges & Corde, P.C., White Plains , N.Y. (Paul Edward Svensson of counsel), for respondents.

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ.

*1 In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (La Cava, J.), entered April 27, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff slipped and fell on a piece of fruit in the produce aisle of the defendants' premises. In response to the defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the defendants created the alleged defect or had actual or constructive notice of it (see Moss v. JNK Capital, 211 A.D.2d 769, 621 N.Y.S.2d 679; affd 85 N.Y.2d 1005, 631 N.Y.S.2d 280, 655 N.E.2d 393; see also Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 437, 669 N.Y.S.2d 669; Katsoris v. Waldbaum, Inc., 241 A.D.2d 511, 512, 663 N.Y.S.2d 984). The defendants' general awareness that fruit sometimes fell onto the floor of their premises was insufficient to raise a triable issue of fact as to whether they had notice of the specific condition which caused the plaintiff to fall (see Halperin v. Waldbaum's Supermarket, 236 A.D.2d 514, 515, 653 N.Y.S.2d 686; compare McLaughlan v. Waldbaums, Inc., 237 A.D.2d 335, 336, 654 N.Y.S.2d 406; Chin v. Harp Mktg., 232 A.D.2d 601, 602, 648 N.Y.S.2d 697).