Allein v. Niagara Frontier Services, Inc.

—Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Plaintiff commenced this action to recover damages for injuries allegedly sustained when he slipped and fell on a rug in the produce area of defendant’s supermarket. Plaintiff submitted evidence that an oily substance similar in appearance to salad dressing contained in bottles on a nearby display had accumulated underneath the rug and had soaked it. That evidence raised a factual issue whether the substance had been present for a length of time sufficient to place defendant on constructive notice (see, Negri v Stop & Shop, 65 NY2d 625; Restey v Victory Mkts., 127 AD2d 987, lv denied 69 NY2d 613). Thus, Supreme Court erred in granting defendant’s motion for summary judgment. (Appeal from Order of Supreme Court, Erie County, Doyle, J.—Summary Judgment.) Present—Pine, J. P., Balio, Fallon, Callahan and Davis, JJ.