        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

244
CA 13-00691
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


ESAD SEFERAGIC, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HANNAFORD BROS. CO., A SUBSIDIARY OF MARTIN
FOODS OF SOUTH BURLINGTON, INC., DOING BUSINESS
AS HANNAFORD SUPERMARKETS, DEFENDANT-APPELLANT.


HISCOCK & BARCLAY, LLP, ALBANY (DAVID M. COST OF COUNSEL), FOR
DEFENDANT-APPELLANT.

PETER S. PALEWSKI, NEW YORK MILLS, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (David
A. Murad, J.), entered November 30, 2012 in a personal injury action.
The order denied defendant’s motion for summary judgment dismissing
plaintiff’s complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he slipped and fell on premises owned by
defendant. We agree with defendant that Supreme Court erred in
denying its motion for summary judgment dismissing the complaint.
“ ‘In seeking summary judgment dismissing the complaint, defendant had
the initial burden of establishing that it did not create the alleged
dangerous condition and did not have actual or constructive notice of
it’ ” (King v Sam’s E., Inc., 81 AD3d 1414, 1414). We note at the
outset that plaintiff did not assert that defendant created the
allegedly dangerous condition, and thus the only issue before the
court was whether defendant had actual or constructive notice thereof
(see Navetta v Onondaga Galleries LLC, 106 AD3d 1468, 1469).
Defendant established that it did not have actual notice of the
allegedly dangerous condition by demonstrating that it did not receive
any complaints about the allegedly wet floor prior to plaintiff’s fall
(see Quinn v Holiday Health & Fitness Ctrs. of N.Y., Inc., 15 AD3d
857, 857). The fact that it was raining during the morning of
plaintiff’s fall and defendant’s employees placed wet floor warning
cones near the entrance “does not require a finding that defendant[]
had actual notice of the allegedly dangerous condition. Defendant[]
demonstrated that the warning signs were put out as a safety
precaution and not in response to complaints regarding the condition
                                 -2-                           244
                                                         CA 13-00691

of the floor where plaintiff fell” (Snauffer v 1177 Ave. of the Ams.
LP, 78 AD3d 583, 583). With respect to constructive notice, defendant
submitted the deposition testimony of its manager in which he stated
that the floor was dry following plaintiff’s fall and that no remedial
action was required. In addition, defendant submitted plaintiff’s
deposition testimony in which he stated that he did not observe any
puddles on the floor after he fell. “It is well established that,
‘[t]o 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’ ” (King, 81 AD3d at 1415), and here defendant established as a
matter of law by the deposition testimony of defendant’s manager and,
indeed, plaintiff’s own deposition testimony that the defect was not
visible and apparent (cf. King, 81 AD3d at 1415). Plaintiff failed to
raise an issue of fact in response (see generally Zuckerman v City of
New York, 49 NY2d 557, 562).




Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
