Appellate Division of the Supreme Court of New York, 2000

Stumacher v. Waldbaum, Inc.

Appellate Division of the Supreme Court of New York · Decided July 31, 2000

274 A.D.2d 572; 716 N.Y.S.2d 573; 2000 N.Y. App. Div. LEXIS 8317

Cases that cite this one

17 later published cases cite this decision.

Rivera v. Queens Ballpark Co., LLC (Appellate Division of the Supreme Court of New York 2015)
Holub v. Pathmark Stores, Inc. (Appellate Division of the Supreme Court of New York 2009)
Birnbaum v. New York Racing Ass'n (Appellate Division of the Supreme Court of New York 2008)
Seabury v. County of Dutchess (Appellate Division of the Supreme Court of New York 2007)
Langer v. BJ's Wholesale Club, Inc. (Appellate Division of the Supreme Court of New York 2007)
Arrufat v. City of New York (Appellate Division of the Supreme Court of New York 2007)
Yioves v. T.J. Maxx, Inc. (Appellate Division of the Supreme Court of New York 2006)
Feldmus v. Ryan Food Corp. (Appellate Division of the Supreme Court of New York 2006)
Gallais-Pradal v. YWCA of Brooklyn (Appellate Division of the Supreme Court of New York 2006)
Kasner v. Pathmark Stores, Inc. (Appellate Division of the Supreme Court of New York 2005)
Britto v. Great Atlantic & Pacific Tea Co. (Appellate Division of the Supreme Court of New York 2005)
Marino v. Stop & Shop Supermarket Co. (Appellate Division of the Supreme Court of New York 2005)
Librandi v. Stop & Shop Food Stores, Inc. (Appellate Division of the Supreme Court of New York 2004)
Joachim v. 1824 Church Avenue, Inc. (Appellate Division of the Supreme Court of New York 2004)
Grant v. Radamar Meat (Appellate Division of the Supreme Court of New York 2002)
Cox v. Fox Apartment Group, L.P. (Appellate Division of the Supreme Court of New York 2001)
Sbasching v. Great Atlantic & Pacific Tea Co. (Appellate Division of the Supreme Court of New York 2001)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 12, 2000, as denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the cross motion is granted, and the complaint dismissed.

To establish a prima facie case of negligence, a plaintiff in a slip and fall action must demonstrate that the defendant either created the condition which caused the accident, or had actual or constructive notice of the condition (see, Goldman v Waldbaum, Inc., 248 AD2d 436; Kraemer v K-Mart Corp., 226 AD2d 590). To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time before the accident to permit the defendant or its employees to discover and remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837). On a motion for summary judgment to dismiss the complaint based upon a lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, Bachrach v Waldbaum, Inc., 261 AD2d 426; Goldman v Waldbaum, Inc., supra). In the instant case, the defendant met that burden.

The plaintiff, in opposition, submitted no evidence tending to raise an issue of fact that the defendant created or had actual notice of the allegedly dangerous condition that caused her to fall. In the absence of evidentiary facts from which construe*573tive notice may be inferred from the length of time the condition existed, the complaint must be dismissed (see, Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280; Moss v JNK Capital, 211 AD2d 769). Bracken, J. P., Santucci, McGinity and Feuerstein, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.