Raanan v. Fifth Avenue of Long Island Realty Associates

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Peck, J.), entered September 3, 2003, which denied their motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The defendants met their prima facie burden of showing that they neither created nor had actual or constructive notice of the allegedly dangerous condition, a toothpick, upon which the injured plaintiff allegedly slipped and fell (see Goldman v Waldbaum, Inc., 297 AD2d 277 [2002]). In opposition, the 438 plaintiffs failed to raise a triable issue of fact that the defendants Waldbaum, Inc., and The Great Atlantic and Pacific Tea Co., Inc., created the “condition” or had actual or constructive notice thereof (see Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]; Kraemer v K-Mart Corp., 226 AD2d 590, 591 [1996]; Becker v Waldbaum, Inc., 221 AD2d 396 [1995]; Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280, 281 [1994]). The plaintiffs interposed no opposition to that branch of the motion which was made on behalf of the defendant Fifth Avenue of Long Island Realty Associates, an out-of-possession landlord. Accordingly, the defendants’ motion for summary judgment dismissing the complaint should have been granted. Schmidt, J.P., Goldstein, Crane and Fisher, JJ., concur.