Opinion
2002-02054
Submitted February 14, 2003.
March 3, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated December 13, 2001, which granted the defendant's motion for summary judgment dismissing the complaint.
Mallilo Grossman, Flushing, N.Y. (Francesco Pomara, Jr., and Beth Girsch of counsel), for appellant.
Sobel Kelly, P.C., Huntington, N.Y. (Linda M. Garger of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the defendant established, prima facie, its entitlement to judgment as a matter of law by demonstrating the absence of proof that the produce upon which the plaintiff slipped was present on the supermarket floor for a sufficient length of time to support a finding that the defendant had constructive notice of the condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836; Kerson v. Waldbaums Supermarket, 284 A.D.2d 376, 377). The plaintiff's mere assertions that the produce was brown and appeared to have been stepped on and rolled over by shopping carts failed to raise an issue of fact in opposition to the motion (see Koser v. Supermarkets Gen. Corp., 244 A.D.2d 320, 321; Cuddy v. Waldbaum, Inc., 230 A.D.2d 703, 704; Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280).
SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur.