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

514
CA 12-01375
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


OROSMAN DELSOL, PLAINTIFF-APPELLANT,

                     V                            MEMORANDUM AND ORDER

FAMILY DOLLAR STORES OF NEW YORK, INC.,
DEFENDANT-RESPONDENT.


STEVEN A. LUCIA, ROCHESTER, FOR PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA LLP, SYRACUSE (SANDRA J. SABOURIN OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), entered April 17, 2012. The order granted the motion
of defendant for summary judgment and dismissed the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this slip and fall action, plaintiff appeals from
an order that granted defendant’s motion for summary judgment
dismissing the amended complaint. “In slip and fall cases involving
the presence of slippery or wet substances, absent evidence that the
owner of the premises created a dangerous condition, ‘liability [can]
be predicated only on failure of [defendant] to remedy the danger
presented by the liquid after actual or constructive notice of the
condition’ ” (Winecki v West Seneca Post 8113, 227 AD2d 978, 978,
quoting Piacquadio v Recine Realty Corp., 84 NY2d 967, 969). Here,
plaintiff relies upon constructive notice, and it is well settled
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” (Gordon v American Museum of Natural History, 67 NY2d 836, 837).
“By submitting evidence that demonstrated that the defect was not
visible and apparent, defendant established that it did not have
constructive notice of the defect. Defendant thus met its initial
burden” on its motion for summary judgment (Quinn v Holiday Health &
Fitness Ctrs. of N.Y., Inc., 15 AD3d 857, 858; see Dragotta v Walmart,
Inc., 39 AD3d 800, 800-801), and plaintiff failed to raise a triable
issue of fact in opposition (see Breuer v Wal-Mart Stores, 289 AD2d
276, 277, lv denied 97 NY2d 610).

Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
