Cafiero v. Inserra Supermarkets, Inc.

Mercare, J. Appeal (transferred to this Court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Stolarik, J.), entered October 10, 1991 in Rockland County, upon a dismissal of the complaint at the close of evidence. Plaintiffs commenced this action seeking damages for injuries sustained as a result of a slip and fall of plaintiff Phyllis Cañero (hereinafter plaintiff) in a store operated by defendant. In our view, a jury determination that defendant had actual or constructive knowledge of the condition which caused plaintiff’s injury would have been based upon nothing more than speculation and surmise. Accordingly, Supreme Court’s judgment dismissing the complaint at the conclusion of the proof should be affirmed. Although the trial evidence established the existence of a small dark sticky spot on the floor near the site of plaintiff’s fall, the proof does not support any conclusion, or even permit a reasonable inference, as to the identity, source or time of deposit of the substance. Despite the testimony that the spot was dirty, there is no question that the floor was professionally cleaned and polished less than two hours prior to the accident and, although Saturday traditionally was a busy day at the store, the accident took place during one of the slowest times of the day. Similarly, although plaintiff testified as to the existence of dirty streaks near the spot, no indication is given that these marks had a common origin or were in any way related to the spot. Plaintiff candidly testified that she did not see the spot (or the nearby dirty streaks) prior to the accident and did not know what caused her to fall. It was after the accident, when she was sitting on a milk crate in the aisle, that she first saw the spot and streaks. Notably, no witness testified that the spot was smeared or otherwise evidenced plaintiff’s step or slip on it. Under the circumstances, plaintiff failed to establish that the claimed defect was visible and apparent or that it existed for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837; Benware v Big V Supermarkets, 177 AD2d 846; Torri v Big V, 147 AD2d 743; Anderson v Klein’s Foods, 139 AD2d 904, affd on mem below 73 NY2d 835). Crew III, J., and Harvey, JJ., concur.