Plaintiff Germana Defalco commenced this action to recover for injuries she allegedly sustained on May 24, 2002 when she fell after slipping on a piece of banana in the premises of defendant BJ's Wholesale Club, Inc. The banana was peeled and there are no allegations with regard to the banana skin. [*2]

On this motion for summary judgment, the movant, defendant BJ's Wholesale Club, Inc., has the burden of making "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case....". (Padula v. Big V Supermarkets, 173 AD2d 1094, 1095 [Third Dept 1991]. Defendant met this burden through the evidence submitted on the motion including the deposition testimony of plaintiff, her daughter Pierina Seidman and defendant's employee, Dawn Berrospi. Defendant has established that no evidence existed which showed that defendant had either created the condition that caused plaintiffs' fall or that it had actual or constructive notice of the condition.

The burden then shifted to plaintiff to establish that a question of fact exists for trial. Plaintiff tried to establish constructive notice of the banana based upon plaintiffs' deposition testimony that when she saw the banana stuck to the bottom of her shoe after she fell it was brown. "Constructive notice requires proof that a defect was visible and apparent and that it existed for a sufficient length of time before the accident to permit the defendant's employees to discover and remedy it". (Fox v Kamal Corporation, 271 AD2d 485 [Second Dept. 2000], citing

to Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Plaintiff asserts that since the banana was brown it shows that it was there for a sufficient length of time to put

defendant on notice of its existence. Even giving plaintiff the benefit of the doubt and assuming that the banana was sufficiently discolored this argument is unconvincing because it is too speculative. The banana could have been brown to begin with or could have turned brown when defendant stepped on it. Based on the above, plaintiff has failed to adduce proof that defendant had any notice of the condition, therefore, and failed to raise any issues of material fact for trial.

Accordingly, it is

ORDERED, that the motion is granted and the complaint of said plaintiff, GERMANA DEFALCO, is dismissed as against said defendant BJ'S WHOLESALE CLUB, INC.; it is further

ORDERED, that the Clerk of the Court is authorized to enter judgment in accordance with the above.

ENTER,

Dated ______________________________________________________

ROGER N. ROSENGARTEN, J.S.C.