Defendant in this personal injury action moves for summary judgment dismissing the complaint. For the following reasons, the motion is granted.

Plaintiff alleges that she sustained personal injuries when she slipped and fell on a wet floor in the aisle of defendant supermarket on September 18, 2004. A business proprietor has a duty "to maintain its property in a reasonably safe condition under the existing circumstances, including the likelihood of injury to third parties, the potential that any such injury would be of a serious nature and the burden of avoiding the risk." Zuk v The Great Atlantic & Pacific Tea Co., Inc. d/b/a The Food Emporium, 21 AD3d 275, 275, 799 NYS2d 504, 505 [1st Dept 2005]. The plaintiff in a slip-and-fall case establishes a breach of this duty by showing that the defendant [*2]"created, or had actual or constructive notice of the hazardous condition which precipitated the injury." Id. See also Kesselman v Lever House Restaurant, 29 AD3d 302, 304, 816 NYS2d 13, 14-15 [1st Dept 2006]. Here, it is undisputed that defendant did not have actual or constructive notice of the alleged hazardous condition. The only issue on this motion is whether defendant created the condition.

In support of the motion, defendant submits two Examination Before Trial (EBT) transcripts, that of plaintiff and that of defendant's employee, Philip Altamura, the manager of the store where the incident occurred. During her EBT, plaintiff testified that the aisle in which she fell (aisle five) contained food shelves on one side and glass-door freezers housing frozen foods on the other. (Pl. EBT at 32-33.) She stated that in that aisle she also observed a cart containing frozen foods. (Id. at 33.) After her fall, she noticed that the cart was "dripping water that caused me to fall." (Id. at 33, line 13.) Plaintiff described the cart as a "standard shopping cart," the kind a shopper would use while walking through a store. (Id. at 35.) She testified that the water was dripping from the bottom of the cart. (Id. at 36.)

In his EBT, the store manager, Mr. Altamura, testified that frozen foods are brought up from the basement to the sales floor on a conveyor belt and placed on a "flat table" called a "Hollywood," from which they are then unloaded into the freezers. (Def. EBT at 63-64.) Mr. Altamura described the Hollywood as being made of metal, with a top and bottom shelf and four wheels (Id. at 65.) He could not specifically recall whether such a table was present in aisle five at the time of the incident. (Id. at 66.) Based on the deposition testimony, defendant argues that the cart plaintiff identified as the culprit was just a standard shopping cart a wheeling basket made of metal grids, and not a Hollywood a rolling two-tiered metal table. Since the Hollywood is the only wheeling apparatus defendant uses to transport frozen foods, and the Hollywood was not what plaintiff testified she saw dripping from the bottom immediately after she fell, defendant argues that it could not have created the alleged hazardous condition.

In opposition, plaintiff's counsel valiantly but unsuccessfully attempts to conflate the descriptions of these two distinct contraptions. For example, plaintiff's counsel repeatedly refers to the Hollywood as a cart when Mr. Altamura consistently called it a table. Plaintiff's counsel also makes much of Mr. Altamura's description of the Hollywood as "[j]ust flat sheet metal, I guess" (Def. EBT at 65) (emphasis added) as calling into question his knowledge that the Hollywood (like a standard shopping cart) is made of metal at all. Yet it is clear from the context that Mr. Altamura was merely unsure about the exact type of metal. Moreover, plaintiff's counsel mischaracterizes plaintiff's testimony that the cart she saw contained frozen foods by describing the cart alternately as being "filled," "loaded," or "teeming" with frozen vegetables which is how one might expect an apparatus used by defendant's employees for loading and unloading to look.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 [*3]NY2d 320, 508 NYS2d 923 [1986]. If the moving party sustains its burden, the opposing party must submit evidence of a triable issue of fact in order to defeat the motion. See Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]. The law requires the party opposing summary judgment to "lay bare" its proof to affirmatively demonstrate the existence of a genuine triable issue of fact. See AFA Protective Systems, Inc. v Kaufman Eighth Ave. Assocs., 251 AD2d 127, 672 NYS2d 738 [1st Dept 1998]; State v Metz, 241 AD2d 192, 198, 671 NYS2d 79, 82 [1st Dept 1998].

The Court finds that defendant has met its prima facie burden for proving its entitlement to summary judgment, thereby shifting the burden to plaintiff to raise a triable issue of fact, and that plaintiff has failed to meet that burden. Defendant submitted admissible evidentiary proof that it did not create the alleged hazardous condition. In opposing the motion, plaintiff has failed to defeat that showing. Clearly, if the cart from which the dripping water emanated belonged to an errant shopper, defendant cannot be said to have created the condition that caused plaintiff's fall. Plaintiff unequivocally described the cart she saw dripping water as a standard shopping cart. The same could not reasonably be confused with one of the flat tables described by Mr. Altamura that defendant uses to transport frozen foods. Since plaintiff has come forward with no other evidence of any triable issue of fact, defendant's motion must be granted.

Accordingly, defendants' motion for summary judgment is granted, and the complaint is hereby dismissed.

This is the Decision and Order of the Court.

Dated:_________________

ARLENE P. BLUTH

Judge, Civil Court

ASN by________ on _________