Opinion
May 9, 1991
Appeal from the Supreme Court, New York County (William J. Davis, J.).
Constructive notice requires a showing of a hazardous condition that was not only visible and apparent before the accident, but also in existence a sufficient length of time to allow the defendant to observe and remove it. Plaintiffs' failure to meet that test creates the possibility that the condition may have emanated only moments before the accident, through no fault or with no knowledge of the defendant, any other conclusion being pure speculation (Gordon v American Museum of Natural History, 67 N.Y.2d 836; Anderson v Klein's Foods, 139 A.D.2d 904, affd 73 N.Y.2d 835; cf., Negri v Stop Shop, 65 N.Y.2d 625).
When defendant's salesman rushed to aid the prostrate injured party and noticed the slippery substance on the floor under him, he excitedly blurted out that "it must be from the cleaning". The Trial Judge sustained the objection to this statement as hearsay. Even if this statement should have been admissible as a spontaneous utterance, its exclusion was harmless error in light of the other evidence in the case that virtually precluded the possibility that a cleaning substance spread by defendant or its agent (third-party defendant) might have remained on the floor for four and a half to six hours in a wet condition without being noticed (see, Hansell v Galvani, 286 App. Div. 1019, lv denied 309 N.Y. 1035).
Concur — Murphy, P.J., Sullivan, Asch, Kassal and Rubin, JJ.