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Cohn v. Mayfair Supermarkets, Inc.

Appellate Division of the Supreme Court of New York, Second Department
May 19, 2003
305 A.D.2d 528 (N.Y. App. Div. 2003)

Opinion

2002-04852

Argued April 24, 2003.

May 19, 2003.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated April 30, 2002, which granted the defendant's motion for leave to reargue its prior motion for summary judgment dismissing the complaint which was denied in an order of the same court dated March 11, 2002, vacated the prior order, and granted the motion for summary judgment dismissing the complaint.

Elovich Adell, Long Beach, N.Y. (A. Trudy Adell, Mitchel Sommer, Jason Greenberg, and Glen Sable of counsel), for appellant.

Torino Bernstein, P.C., Mineola, N.Y. (Christine M. Capitolo and Eva Tompkins of counsel), for respondent.

Before: SANDRA J. FEUERSTEIN, J.P., LEO F. McGINITY, HOWARD MILLER, THOMAS A. ADAMS, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly sustained injuries when she slipped and fell on a wet spot in the laundry aisle of the defendant's supermarket. The defendant moved for summary judgment dismissing the complaint, and sustained its initial burden of demonstrating that it did not create or have actual or constructive notice of the spilled detergent, which allegedly caused the plaintiff's fall, by submitting evidentiary proof, which included the affidavit of the supermarket's customer operations manager.

In opposition, the plaintiff relied upon the store manager's alleged post-accident statement, in which he reprimanded an employee for not cleaning the wet spot 15 minutes earlier when the employee was told to do so. Contrary to the plaintiff's contention, that statement is hearsay which cannot be used by the plaintiff to raise a triable issue of fact as to the defendant's actual or constructive notice (see Loschiavo v. Port Auth., 58 N.Y.2d 1040; Masotti v. Waldbaum's Supermarket, 227 A.D.2d 532, 533; Gottlieb v. Waldbaum's Supermarket, 226 A.D.2d 344; Lowen v. Great Atl. Pac. Tea Co., 223 A.D.2d 534, 535; Golden v. Horn Hardart Co., 244 App. Div. 92, affd 270 N.Y. 544; cf. Gelpi v. 37th Ave. Realty Corp., 281 A.D.2d 392; Stern v. Waldbaum, Inc., 234 A.D.2d 534, 535).

The store manager's statement is also not admissible as an exception to the hearsay rule. Under the speaking authority exception to hearsay, an employee's comments can be binding on an employer if the plaintiff submits evidence in admissible form establishing that the employee's statement was made within the scope of the employee's authority to speak for the employer (see Melendez v. Melmarkets, Inc., 276 A.D.2d 535, 536; Williams v. Waldbaums Supermarkets, 236 A.D.2d 605, 606). Here, the plaintiff did not provide evidence that the store manager had such authority to speak on behalf of the defendant (see Risoli v. Long Is. Light Co., 195 A.D.2d 543, 544). Therefore, to the extent that the plaintiff seeks to use the store manager's post-accident statement to raise a triable issue of fact, the statement is not admissible against the defendant as evidence of actual or constructive notice of the wet condition.

Accordingly, the Supreme Court properly granted the defendant's motion for leave to reargue and upon reargument, properly granted summary judgment dismissing the complaint.

FEUERSTEIN, J.P., McGINITY, H. MILLER and ADAMS, JJ., concur.


Summaries of

Cohn v. Mayfair Supermarkets, Inc.

Appellate Division of the Supreme Court of New York, Second Department
May 19, 2003
305 A.D.2d 528 (N.Y. App. Div. 2003)
Case details for

Cohn v. Mayfair Supermarkets, Inc.

Case Details

Full title:JOAN COHN, appellant, v. MAYFAIR SUPERMARKETS, INC., d/b/a EDWARDS SUPER…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 19, 2003

Citations

305 A.D.2d 528 (N.Y. App. Div. 2003)
759 N.Y.S.2d 131

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