SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
July 1, 1969
MARION TESCHKE ET AL., RESPONDENTS,
STATE OF NEW YORK, APPELLANT
Appeal by the State from a judgment of the Court of Claims entered March 7, 1968 awarding damages to the claimants.
Herlihy, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Greenblott, JJ., concur in memorandum by Herlihy, J.
The finding of the trial court that the water in the area of the restroom where claimant Marion Teschke fell was the result of being tracked in by patrons following a "downpour of rain" which occurred just prior to the accident mandates the conclusion that the State had not failed to exercise reasonable care. (See Pascual v. State of New York, 23 A.D.2d 518; Kelly v. State of New York, 29 A.D.2d 904.) In the absence of notice, either actual or constructive, claimants must prove that the State created the hazardous condition and this the claimant failed to show. (See Conroy v. Saratoga Springs Auth., 259 App. Div. 365, 367, affd. 284 N. Y. 723; Antenen v. New York Tel. Co., 271 N. Y. 558; Miller v. Gimbel Bros., 262 N. Y. 107.)
Judgment reversed, on the law and the facts, and claim dismissed without costs.
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