Baumgarten v 1071-1081 Brighton Realty, Inc.

[*1] Baumgarten v 1071-1081 Brighton Realty, Inc. 2004 NY Slip Op 51492(U) Decided on December 1, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
2003-1798 K C

VIACHESLAV BAUMGARTEN, Respondent,

against

1071-1081 BRIGHTON REALTY, INC., Defendant, -and- EFE SPECIALTY MARKET, INC., Appellant. VIACHESLAV BAUMGARTEN, Plaintiff, 1079-1081 BRIGHTON REALTY, INC., Defendant.

Appeal by defendant EFE Specialty Market, Inc. from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered September 22, 2003, as denied its motion for summary judgment. [*2]

Order insofar as appealed from unanimously reversed without costs, motion for summary judgment by defendant EFE Specialty Market, Inc. granted, upon searching the record, cross motion for summary judgment by defendant 1079-1081 Brighton Realty, Inc. granted, and complaints dismissed in their entirety.

Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he fell after tripping on a one inch wide white plastic strip located on the sidewalk outside of the store operated by defendant EFE Specialty Market, Inc. (EFE), but owned by defendant 1079-1081 Brighton Realty, Inc. (Brighton). Plaintiff testified during his deposition that he did not see the plastic strip when he entered the store about one-half hour prior to his fall, that the plastic strip was not dirty and that he had no idea where it came from or how it came to be on the sidewalk. In addition, although he walked past the subject location almost every day, he never saw such a plastic strip located on the sidewalk.
"To establish a prima facie case of negligence in a so-called 'slip and fall' case, a plaintiff must demonstrate that the defendant either created the condition which caused the plaintiff's fall, or had actual or constructive notice of it" (Graubart v Laro Maintenance, 244 AD2d 457, 458 [1997]). In the instant case, the record does not [*3]
contain any evidence that EFE or Brighton had actual notice of the presence of the
plastic strip. Moreover, it cannot be said that EFE or Brighton had constructive notice of its presence as there is no evidence as to the length of time the plastic strip was on the sidewalk (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Portanova v Dynasty Meat Corp., 297 AD2d 792 [2002]; Reinoso v City of New York, 288 AD2d 455 [2001]). Plaintiff's claim that the plastic strip must have come from one of the two defendants is speculative (see Gordon, 67 NY2d at 838). As a result, EFE was entitled to summary judgment dismissing the complaint asserted against it (see Gordon, 67 NY2d at 837-838; Dominico-Lescio v Lindenwood Vil., Sec. D., Coop. Corp., 5 AD3d 626 [2004]; Portanova, 297 AD2d 792; Reinoso, 288 AD2d 455).

In addition, although Brighton did not appeal from the denial of its cross motion seeking summary judgment dismissing the complaint, this court has the power to search the record and, if warranted, grant Brighton summary judgment (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Rodriguez v Kimco Centereach 605, 298 AD2d 571, 572 [2002]; Wilson v Buffa, 294 AD2d 357, 358 [2002]; Prisco v Long Is. Univ., 258 AD2d 451, 452 [*4]
[1999]). Consequently, upon searching the record, this court finds that Brighton's cross motion for summary judgment dismissing the complaint asserted against it should have been granted for the reasons previously set forth herein.
Decision Date: December 01, 2004