Holmes v Costco Wholesale Corp.

[*1] Holmes v Costco Wholesale Corp. 2015 NY Slip Op 50884(U) Decided on June 12, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 12, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570313/15

Viola Holmes, Plaintiff-Appellant, -

against

Costco Wholesale Corp. and Costco Wholesale Corp of Yonkers, Defendants-Cross-Appellants.

Plaintiff appeals an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated August 20, 2013, which granted defendants' motion for summary judgment dismissing the complaint. Defendants cross appeal from that portion of the aforesaid order which granted plaintiff's motion to vacate a prior order which granted, on plaintiff's default, defendants' prior motion for summary judgment.

Per Curiam.

Order (Debra Rose Samuels, J.), dated August 20, 2013, affirmed, with $10 costs.

Defendants established a prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that she slipped and fell on either a "wet substance" or "cellophane," while on the checkout line at the defendant's store. The affidavit and deposition testimony of defendants' administrative manager, as well as the maintenance records for the day of the incident, demonstrate that defendants' employees performed an "hourly floorwalk" of the entire store, checking overall cleanliness and indicating any action that should be taken, that no problems were noted during the inspection immediately prior to plaintiff's fall, and that an inspection after the incident indicated no liquid or cellophane on the floor, but only a small piece of gum. As a result, we find that defendants made a prima facie showing that it neither created the hazardous condition, nor had notice of it (see Smith v Costco v Wholesale Corp., 50 AD3d 499, 500-501 [2008]; Morahan-Gick v Costco Wholesale Corp., 116 AD3d 747 [2014]; Lee v Port Chester Costco Wholesale, 82 AD3d 842 [2011]).

In opposition, plaintiff failed to raise any triable issue. Plaintiff's deposition testimony provides nothing more than mere speculation as to the cause of the accident and offers nothing to indicate that defendants created or had notice of the hazard. Indeed, plaintiff did not know how long the water or cellophane was on the floor or how it got there, and did not observe anything on the floor prior to her fall. Accordingly, plaintiff has failed to establish that an issue of fact exists as to defendants' liability (see Smith v Costco v Wholesale Corp., 50 AD3d at 501; Kane v Estia Greek Rest., 4 AD3d 189, 190-191 [2004]). To the extent that plaintiff's son now claims to have seen the cellophane more than one hour before the accident, we can only consider such [*2]statements to have been tailored to avoid the consequences of his earlier testimony - where he alleged the accident was caused by a defective wheel on a shopping cart - and therefore, insufficient to raise a triable issue (see Burkoski v Structure Tone, Inc., 40 AD3d 378, 383 [2007]).

We have considered the parties' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 12, 2015