accident created a triable question for the jury regarding constructive notice.
Noting that the accident in Cagnetto occurred inside the store while the alleged accident in the instant case occurred outside the post office, the United States argues both that Cagnetto is distinguishable from this case, and that it was wrongly decided.
In Cagnetto, the plaintiff contended that the defendant was under a "heightened duty" to inspect for and remedy any spills in the area where the accident took place because, through its design of the store, it created a high-traffic area in which there was an increased likelihood of a spill. In the instant case, plaintiff similarly argues that the Postal Service is under a "heightened duty" to inspect and remedy any spills on the sidewalk outside the post office because that sidewalk is also a high-traffic area and is subject to spills from items sold in the adjacent delicatessan.
No such "heightened duty" exists. See Bogart v. F. W. Woolworth Co., 24 N.Y.2d 936, 301 N.Y.S.2d 995, 249 N.E.2d 771 (Ct. App. 1969) (plant store could not be charged with constructive notice regarding candy on the sidewalk); Gordon, 501 N.Y.S.2d at 647 ("general awareness that litter [possibly originating from a concession stand] or some dangerous condition may be present . . . [on the steps leading to the entrance of the American Museum of Natural History] is [not] legally sufficient to charge defendant with constructive notice of the paper he fell on") (citations omitted).
As in Cagnetto, plaintiff in the instant case contends that defendant's employees should have been aware of the dangerous condition because they were stationed near the site.
Under the facts of this case, however, the Court finds that the mere proximity of employees is insufficient grounds on which to establish constructive notice. See Benware, 576 N.Y.S.2d at 463 ("the fact that certain of defendant's employees were stationed near the site of the accident does not suffice to establish constructive notice").
Finally, the Court notes that Cagnetto relies on three cases in support of its holding denying the defendant's motion for summary judgment on the basis of the plaintiff's failure to present evidence as to the time the dangerous condition existed prior to the accident: Negri, Greco v. Acme Super Markets, 17 A.D.2d 899, 233 N.Y.S.2d 406 (4th Dep't 1962), and Wheeler v. Deutch, 242 A.D. 641, 272 N.Y.S. 161 (2d Dep't 1934). In all three cases, however, evidence was presented regarding the count of time that the allegedly dangerous condition existed prior to the respective accidents. Negri, 491 N.Y.S.2d at 152 (broken jars of baby food on the floor for fifteen to twenty minutes); Greco, 233 N.Y.S.2d at 407 (melted ice-cream on the floor for thirty minutes); Wheeler, 272 N.Y.S. at 162 (beans on the floor for fifteen minutes).
Accordingly, this Court will adhere to the well-established rule that a plaintiff cannot establish constructive notice in the absence of evidence regarding the length of time the dangerous condition existed prior to the accident.
Accordingly, for the above-mentioned reasons, the United States' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
August 20, 1992