O'Neal v. Grand Union

—Casey, J. Appeal (transferred to this Court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Lefkowitz, J.), entered March 24, 1992 in Rockland County, which granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff was injured when she fell while attempting to return a bag of cucumbers to the produce section of defendant’s store, where she had gone to shop. Later that day at the emergency room her granddaughter found what appeared to be a crushed grape on the bottom of her shoe. In response to defendant’s motion for summary judgment dismissing her complaint, plaintiff failed to demonstrate that defendant had created the condition or had notice, either actual or constructive, of the condition that caused or contributed to her fall (see, Anderson v Klein’s Foods, 73 NY2d 835, affg on mem below 139 AD2d 904). Creation of such a condition, or actual or constructive notice thereof, is essential to the imposition of liability on defendant (see, Paolucci v First Natl. Supermarket Co., 178 AD2d 636; Scirica v Ariola Pastry Shop, 171 AD2d 859). Accordingly, we affirm the order of Supreme Court which granted defendant’s motion for summary judgment dismissing plaintiff’s complaint. Mikoll, J. P., Mercure, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.