Strowman v. Great Atlantic & Pacific Tea Co.

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about February 26, 1997, which denied defendant’s motion for summary judgment dismissing the complaint, reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint. Since this record is bereft of any showing as to defendant’s notice, actual or constructive, of the presence of the banana peel on the floor prior to the accident, we reverse and grant summary judgment dismissing the complaint. There is no evidence that defendant created the complained-of condition, and plaintiff does not proceed on that theory. Plaintiff claims that she slipped and fell on a crushed, dirty banana peel lying on the defendant supermarket’s floor in front of the entrance to the cashier’s lane. At her deposition, plaintiff conceded that she did not observe the banana peel before the accident, and that she noted it for the first time after she fell. Nor was there any evidence as to how the banana peel got on the floor or how long it was there before the accident. “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” (Gordon v American Museum of Natural History, 67 NY2d 836, 837; Benware v Big V Supermarkets, 177 AD2d 846, 847.) In the instant case, defendant’s store manager testified at a deposition that the front end of the store is maintained at all times and that a porter is available in case sweeping is needed. The manager further testified that he would walk around the store, particularly in the front area, which he would pass by at least every hour, to make sure there was no debris on the floor. If something were observed, either the manager or porter would [385] take care of it. At his deposition taken on February 22, 1996, the manager had no recollection of the September 10, 1991 accident, which had occurred approximately four and one-half years earlier. Upon observing a banana peel or other spillage on the floor, according to the deposition testimony, a front-end cashier would immediately pick it up or call the manager to have the floor cleaned. Cecilia Flores, a store cashier who has been listed as a witness for plaintiff, could not recall an incident involving a fall over a banana peel although, for several years prior to the accident, she knew plaintiff as a customer. On such a state of the record, it was incumbent upon plaintiff to show that defendant had either actual or constructive notice of the alleged dangerous condition. Asking anything more of a moving defendant in such circumstances on the issue of notice would skew the burden of proof, which is always on the plaintiff. (Eddy v Tops Friendly Mkts., 91 AD2d 1203, affd 59 NY2d 692; see, Benware v Big V Supermarkets, 177 AD2d 846, supra.) A defendant’s burden on the issue of notice on a summary judgment motion is met if he demonstrates the absence of a material issue of fact on the question. He is not, as the dissent holds, required “definitively [to] deny actual or constructive notice of the banana peel.” Such a requirement would, in effect, require a defendant to prove a negative on an issue as to which he does not bear the burden of proof. Colt v Great Atl. & Pac. Tea Co. (209 AD2d 294), cited by the dissent, which held that it was the responsibility of defendant to establish the absence of notice as a matter of law, is distinguishable. While this statement is incorrect as a general proposition of law insofar as a defendant’s initial burden on a summary judgment motion is concerned, it properly represents the burden in Colt, since the plaintiff had submitted proof “that the floor in the produce lane was commonly littered” {supra, at 295), from which it could be reasonably inferred that the defendant could be charged with constructive, if not actual, notice of the problem. No such proof has been offered here. Sufficient facts having been shown on the issue of notice, it was incumbent upon plaintiff to make a prima facie showing on the issue. On that point, she relies on the alleged “crushed and dirty” condition of the banana peel. This is insufficient, as a matter of law. (Cuddy v Waldbaum, Inc., 230 AD2d 703; Kaufman v Man-Dell Food Stores, 203 AD2d 532.) Nor is the fact that defendant’s employees may have been in the vicinity of the accident sufficient to establish constructive notice. (Moss v JNK Capital, 211 AD2d 769, affd 85 NY2d 1005; Benware v Big V Supermarkets, 177 AD2d 846, supra.) [386] Contrary to the dissent’s conclusion, the condition of the banana peel is not sufficient to warrant any inference as to the length of time it had been on the supermarket floor. For all that this record shows, the banana peel could have been deposited on the floor only minutes or seconds before the accident. Any other conclusion would be pure speculation. (Gordon v American Museum of Natural History, supra, 67 NY2d, at 838.) The observation after the accident that the banana peel was crushed and dirty does not warrant the inference that the banana peel was in such a condition prior to the accident since the manner in which the accident occurred would leave a banana peel dirty and crushed. Concur — Sullivan, J. P., Rosenberger and Williams, JJ.