                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 29, 2015                    520492
________________________________

DORON S. ZUPAN,
                     Respondent,
     v
                                             MEMORANDUM AND ORDER
PRICE CHOPPER OPERATING CO.,
   INC.,
                    Appellant.
________________________________


Calendar Date:    September 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                              __________


      Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,
Albany (Jonathan E. Hansen of counsel), for appellant.

      Mack & Associates, Albany (Lucas G. Mihuta of counsel), for
respondent.

                              __________


Clark, J.

      Appeal from an order of the Supreme Court (McGrath, J.),
entered June 5, 2014 in Rensselaer County, which denied
defendant's motion for summary judgment dismissing the complaint.

      Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when she slipped and fell on
water as she exited defendant's grocery store. Following joinder
of issue and discovery, defendant moved for summary judgment
dismissing the complaint. Supreme Court denied defendant's
motion finding, among other things, that there was a question of
fact as to whether defendant had notice of the allegedly
dangerous condition. Defendant now appeals and we affirm.
                              -2-                520492

      "It is well settled that in cases involving a slip and fall
as the result of a slippery or foreign substance on a supermarket
floor, the plaintiff must establish that the defendant either
created the allegedly dangerous condition or had actual or
constructive notice of it" (Collins v Grand Union Co., 201 AD2d
852, 852 [1994] [citations omitted]; accord Davis v Golub Corp.,
286 AD2d 821, 821 [2001]; Tkach v Golub Corp., 265 AD2d 632, 633
[1999]; see McMullin v Martin's Food of S. Burlington, Inc., 122
AD3d 1103, 1104 [2014]). In support of its motion, defendant
submitted all of the available evidence in the case including,
but not limited to, the deposition transcripts of plaintiff and
Danielle Mackey, a cashier at the grocery store and plaintiff's
cousin, and a statement that Mackey wrote shortly after
plaintiff's fall. Defendant asserts, as it did before Supreme
Court, that neither Mackey's written statement nor the oral
statement that she made to plaintiff at the time of the fall
should have been considered, as they both constitute inadmissible
hearsay and, as such, violate the well-established standard that
evidence must be tendered in admissible form (see CPLR 3212;
Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

      Initially, "[t]he requirements for admission of a
memorandum of a past recollection are generally stated to be that
the witness observed the matter recorded, the recollection was
fairly fresh when recorded or adopted, the witness can presently
testify that the record correctly represented his [or her]
knowledge and recollection when made, and the witness lacks
sufficient present recollection of the recorded information"
(People v Taylor, 80 NY2d 1, 8 [1992]; see Morse v Colombo, 31
AD3d 916, 917 [2006]). Here, Mackey testified that, beyond being
upset that her cousin was hurt, she was unable to remember the
particulars of the event, but she did recall filling out and
signing a document recording her memories at the time. In this
document, Mackey averred that she watched plaintiff fall by the
Coinstar machine in an area that had been checked by the front-
end maintenance crew approximately one hour prior to the
incident. In the blank space next to the words "Condition at the
time of last check prior to accident:" Mackey wrote, "ice machine
is always leaking." Mackey recalled completing this document
within days of the incident and explained that the form did not
help to refresh her recollection of the events. On this basis,
                              -3-                520492

we agree with Supreme Court's ruling that Mackey's written
statement was admissible as a past recollection recorded and, as
such, properly considered in the context of defendant's motion
for summary judgment (compare Davis v Golub Corp., 286 AD2d at
822; Walker v Golub Corp., 276 AD2d 955, 957 [2000]).

      Further, in keeping with the principles that, "[t]o grant
summary judgment, it must clearly appear that no material and
triable issue of fact is presented" (Glick & Dolleck v Tri-Pac
Export Corp., 22 NY2d 439, 441 [1968]) and such motion should be
denied if there is any doubt as to the existence of such issues
(see Phillips v Kantor & Co., 31 NY2d 307, 311 [1972]), we
likewise find no error in Supreme Court's consideration of
Mackey's oral statement, notwithstanding its likely
inadmissibility at trial. With that said, however, we
acknowledge that, although "hearsay evidence that is inadmissible
at trial may be sufficient to defeat a motion for summary
judgment, there must be some additional competent evidence to
support the motion or an excuse for the failure to present proof
in admissible form" (Saint James' Episcopal Church v F.O.C.U.S.
Found., 47 AD3d 1058, 1059 [2008]; see Towne v Kinglsey, 121 AD3d
1381, 1382-1383 [2014]).

      At her deposition, plaintiff testified that, after falling,
she noticed water on her hand and asked Mackey where water would
be coming from, to which Mackey replied, "The only thing that's
over there is the ice machine."1 According to plaintiff, Mackey
also related, among other things, that the "ice machine [was]
broken and that she had [previously] asked someone to clean up
the water from it." Plaintiff further described how, after
Mackey brought her to a bench inside the store and seated her on
it, Mackey returned with a front-end supervisor and manager and
again stated that the ice machine had been leaking, that she had
asked someone to clean it up and was not sure if that person had
done so.



    1
        It is undisputed that there is no ice machine at the
front of defendant's store but, rather, a freezer in which bags
of ice are available for purchase.
                              -4-                520492

      Agreeing with Supreme Court that these statements cannot be
admitted pursuant to any exception to the hearsay rule, we also
agree that such statements are sufficiently corroborated so as to
permit their consideration in the context of the summary judgment
motion. Specifically, the record contains testimony from Sandra
O'Neil, the manager of defendant's store at the time, who
remembered observing a small amount of water on the floor just
after plaintiff's fall and, further, recalled previous occasions
when the freezer had leaked and water had accumulated in front of
it. The accident report authored by O'Neil similarly indicates
that plaintiff fell on water in front of the Coinstar machine.
Additionally, the record also contains an incident report
authored by Jacqueline Currie, the front-end supervisor at
defendant's store, that states – albeit somewhat innocuously –
"Don't know if she fell in front of ice machine. There was a wet
spot and it was mopped with wet floor sign." Thus, contrary to
defendant's contentions on appeal, Supreme Court did not err in
considering the aforementioned statements in this limited
context, as there is other admissible proof in the record to
establish that there was water on the floor near the Coinstar
machine at the time of plaintiff's fall.

      In light of the foregoing, we agree that summary judgment
dismissing the complaint is not warranted. Even if defendant met
its prima facie burden, viewing the proof in the light most
favorable to the nonmovant (see Candelario v Watervliet Hous.
Auth., 46 AD3d 1073, 1074 [2007]), we find that plaintiff's
submissions raised questions of fact as to whether defendant
maintained the premises in a reasonably safe condition and
whether it created or had actual or constructive notice of the
allegedly dangerous condition (see Knapp v Golub Corp., 72 AD3d
1260, 1262 [2010]). We reject defendant's contention that
summary judgment is appropriate as plaintiff is unable to
establish the source of the water on the floor.

     Lahtinen, J.P., Egan Jr. and Devine, JJ., concur.
                        -5-                  520492

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
