Franco v D'Agostino Supermarkets, Inc.

Franco v D'Agostino Supermarkets, Inc. 2006 NY Slip Op 08341 [34 AD3d 328] November 16, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Charles A. Franco, Appellant,
v
D'Agostino Supermarkets, Inc., Respondent.

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Order, Supreme Court, New York County (Debra A. James, J.), entered November 3, 2005, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In response to defendant's prima facie showing, plaintiff failed to raise an issue of fact as to notice. "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 [1986]). The evidence offered by plaintiff was insufficient to establish how the "gooky" substance got on the floor or how long it had been there before the accident (see Strowman v Great Atl. & Pac. Tea Co., 252 AD2d 384 [1998]). We have considered plaintiff's remaining arguments and find them without merit. Concur—Andrias, J.P., Friedman, Marlow, Nardelli and Sweeny, JJ.