Opinion
January 26, 1998
Appeal from the Supreme Court, Nassau County (Bucaria, J.).
Ordered that the order is affirmed, with costs.
The defendant has met its initial burden of coming forward with admissible evidence reciting the material facts and showing that the cause of action has no merit ( see, GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965). However, in response the plaintiff has not met her burden of demonstrating, by admissible evidence, that there exists a factual issue requiring a trial of the action and has not presented an acceptable excuse for her failure to do so ( see, Zuckerman v. City of New York, 49 N.Y.2d 557).
To establish a prima facie case of negligence in a "slip-and-fall" case, a plaintiff must demonstrate that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition ( see, Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 281; Kaplan v. Waldbaum's Inc., 231 A.D.2d 680). Contrary to the plaintiff's contention, there is no evidence in the record suggesting that the defendant created the allegedly dangerous condition. Furthermore, the plaintiff did not prove that the defendant had actual or constructive notice of the condition. The evidence was too speculative to establish that the defect was in existence for a sufficient length of time before the accident to permit the defendant's employees to discover and remedy it ( see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836; see also, Anderson v. Klein's Foods, 139 A.D.2d 904, affd 73 N.Y.2d 835; Batiancela v. Staten Is. Mall, 189 A.D.2d 743; Pirillo v. Longwood Assocs., 179 A.D.2d 744).
Rosenblatt, J.P., Altman, Florio and McGinity, JJ., concur.