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Pastore v. Western Beef, Inc.

Supreme Court of New York, Second Department

October 16, 2013

Nancy Pastore, appellant,
v.
Western Beef, Inc., respondent. Index No. 7244/10

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Albert W. Cornachio, P.C., Rye Brook, N.Y. (Christopher R. Block of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered March 19, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Petersel v Good Samaritan Hosp. of Suffern, N.Y., 99 A.D.3d 880, 880; Johnson v Culinary Inst. of Am., 95 A.D.3d 1077, 1078; Perez v New York City Hous. Auth., 75 A.D.3d 629, 630; Edwards v Great Atl. & Pac. Tea Co., Inc., 71 A.D.3d 721, 721). "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 A.D.3d 598, 598-599; see Petersel v Good Samaritan Hosp. of Suffern, N.Y., 99 A.D.3d at 880; Johnson v Culinary Inst. of Am., 95 A.D.3d at 1078; Schiano v Mijul, Inc., 79 A.D.3d 726, 726-727; Farrell v Waldbaum's, Inc., 73 A.D.3d 846, 847; Ames v Waldbaum, Inc., 34 A.D.3d 607, 607).

Here, in support of its motion, the defendant store owner demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that it did not create the condition that caused the plaintiff to fall in its store or have notice thereof (see Ingram v Long Is. Coll. Hosp., 101 A.D.3d 814, 815; Cerniglia v Loza Rest. Corp., 98 A.D.3d 933, 934; Knack v Red Lobster 286, N & D Rests., Inc., 98 A.D.3d 473, 473-474; Pollina v Oakland's Rest., Inc., 95 A.D.3d 1190, 1191; Cusack v Peter Luger, Inc., 77 A.D.3d 785, 786). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

SKELOS, J.P., DICKERSON, HALL and MILLER, JJ., concur.


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