Biersbach v. Wegman's Food Markets, Inc.

Order affirmed with costs. All concur, except Doerr, J., not participating, and Boomer, J., who dissents and votes to reverse in the following Memorandum.

On its motion for summary judgment, defendant submitted proof in evidentiary form that there was no unsafe condition where plaintiff fell. Its witness testified that there was no metal strip and no other defect in the surface of the floor. In opposition to the motion, plaintiff failed to present proof of a dangerous condition. Although plaintiff testified at her examination before trial that her foot caught on a metal strip on the floor, she gave no description of the strip. Without any description of the metal strip, there is nothing to show that it presented a dangerous condition. Even if we assume that the condition of the strip was dangerous, there is nothing to show how long that condition existed. Plaintiff did not testify that the metal strip was permanently affixed to the floor and, thus, there is no showing of how long the strip had been on the floor. Even if we infer that the strip was permanently affixed and that it was somehow dangerous *954because it protruded above the surface of the floor, there is no showing of the period of time it protruded. (Appeal from Order of Supreme Court, Erie County, Wolfgang, J. — Summary Judgment.) Present — Callahan, J. P., Boomer, Pine, Boehm and Doerr, JJ.