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

1175
CA 16-00212
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


WAYNE CLARKE AND KATHLEEN CLARKE, INDIVIDUALLY
AND AS HUSBAND AND WIFE, PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

WEGMANS FOOD MARKETS, INC., DEFENDANT-APPELLANT.


WALSH ROBERTS & GRACE, BUFFALO (ROBERT P. GOODWIN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ANDREW CONNELLY
OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Catherine
R. Nugent Panepinto, J.), entered May 5, 2015. The order denied the
motion of defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting defendant’s motion in part
and dismissing the complaint to the extent that the complaint, as
amplified by the bill of particulars, alleges that defendant created
or had actual notice of the allegedly dangerous condition, and as
modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by plaintiff Wayne Clarke when he slipped
on a puddle in the bathroom of defendant’s store. Supreme Court erred
in denying that part of defendant’s motion for summary judgment
dismissing the complaint to the extent that the complaint, as
amplified by the bill of particulars, alleges that defendant was
negligent because it created or had actual notice of the allegedly
dangerous condition. We therefore modify the order accordingly.
Defendant met its initial burden with respect to those issues and
plaintiffs did not address them in their opposition to the motion,
“thus implicitly conceding that defendants were entitled to summary
judgment to that extent” (Hagenbuch v Victoria Woods HOA, Inc., 125
AD3d 1520, 1521). Plaintiffs’ contention that defendant created the
allegedly dangerous condition is raised for the first time on appeal
and therefore is not properly before us (see Ciesinski v Town of
Aurora, 202 AD2d 984, 985).

     Contrary to defendant’s contention, we conclude that the court
properly denied the motion with respect to the claim that defendant
had constructive notice of the allegedly dangerous condition.
                                 -2-                          1175
                                                         CA 16-00212

Defendant failed to meet its initial burden of establishing that the
puddle was not visible and apparent or that it formed so close in time
to the incident that defendant could not reasonably have been expected
to notice and remedy the condition (see Rivera v Tops Mkts., LLC, 125
AD3d 1504, 1505-1506; Navetta v Onondaga Galleries LLC, 106 AD3d 1468,
1469-1470; King v Sam’s E., Inc., 81 AD3d 1414, 1415).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
