The motion by defendant Pathmark Stores, Inc. ("Pathmark") for summary judgment as to the plaintiffs' complaint is denied for the reasons set forth herein.

Plaintiffs commenced this action for monetary damages for injuries allegedly sustained by Marjorie Robinson (the "plaintiff") at a Pathmark supermarket on Hempstead Turnpike in West Hempstead, NY Plaintiffs allege that on January 22, 2004, at approximately 4 PM, she fell on a raised and/or buckled carpet in the produce section of the store (see Exhibit D, pgs. 11, 20, 22-23 annexed to Pathmark's motion). Plaintiff, in her mid seventies at the time of the incident, stated the bulge was 4' high (Exhibit D, pg. 29 annexed to Pathmark's motion). Pathmark contends the plaintiffs cannot establish that Pathmark created the condition or had actual or constructive notice of the problem with a reasonable opportunity to have Pathmark employees remedy the situation.

Plaintiff stated there was a metal food rack or display in the area (see Exhibit D, pg. 27 annexed to Pathmark's motion; see also Exhibit A annexed to plaintiffs' affirmation in opposition) Pathmark's incident investigation report (see Exhibit B annexed to plaintiffs' affirmation in opposition) indicated a food tray/rack was on top of the rug and the rug was laid because of inclement weather. A Mr. Patrick Barrett, a Pathmark shift manager, was the first at the incident scene and the interviewer for the incident investigation report. Edward Bracco, Pathmark assistant store manager on the day of the incident, stated he had observed the rug/carpet such as the one involved in the incident buckle/raise (see Exhibit F, pgs. 81-82 annexed to Pathmark's motion). Zono Smith, Jr., a [*2]maintenance worker at the Pathmark store, stated part of his job was to keep the mats in issue "placed properly" (see Exhibit G, pg. 13 annexed to Pathmark's motion). So Mr. Smith made continuous walks "around the store" (p. 36). The mat at the location of the incident was always there (p. 23). Mr. Smith had seen the mat buckle once prior to January 22, 2004 due to the stand or display rack on the mat (p. 23-24). Mr. Smith had not seen mats buckled at any other location (p. 25). Mr. Smith had been on the job for four (4) months prior to the incident (p. 5, 6).

In the deposition of Joe Tetro, a produce manager of the Pathmark Store on the date of the incident, Mr. Tetro stated he had seen the mat buckle "every once in a while" or "approximately once a week" (see Exhibit H, pg. 30 annexed to Pathmark's motion). If Mr. Tetro saw the mat buckled, he would straighten it out (p. 31). Mr. Tetro was not a witness to plaintiff's accident (p. 31).

A landowner, renter, possessor, etc., must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Peralta v Henriquez, 100 NY2d 139).

There is no doubt that to prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition (Cruceta v Funnel Equities, Inc., 18 AD3d 693; Rabadi v Atlantic & Pacific Tea Co., Inc., 268 AD2d 418; Bradish v Tank Tech Corp., 216 AD2d 505).

As proponents of the motion for summary judgment, defendants have the initial burden of establishing that they lacked actual or constructive notice of an allegedly dangerous condition (Richardson-Dorn v Golub Corp., 252 AD2d 790).

Thus, it was not plaintiffs' burden in opposing the motion for summary judgment to demonstrate that the supermarket had actual or constructive notice of the unsafe condition; it is Pathmark's responsibility to establish the absence of notice as a matter of law (Colt v Great Atlantic & Pacific Tea Co., 209 AD2d 294).

To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient amount of time prior to the accident to permit the defendant's employees to discover and remedy it (Negri v Stop & Shop, Inc., 65 NY2d 625).

For the purposes of a slip and fall action, the general awareness that a dangerous condition might exist is legally insufficient to constitute notice of the particular condition which caused the injury (Solazzo v New York City Transit Authority , 6 NY3d 734; Baumgartner v Prudential Insurance Co. of America, supra).

A general awareness that floor mats bunch is insufficient by itself to constitute notice of the dangerous condition (Kasner v Pathmark Stores, Inc., 18 AD3d 440).

As to recurring condition (as claimed by plaintiff herein), it is true that proof that a defendant was aware of a general condition is not sufficient to establish constructive notice of a particular condition which caused the injured plaintiff to fall (Kershner v Pathmark Stores, Inc., 280 AD2d 583), but a defendant who has actual knowledge of an [*3]ongoing and recurring allegedly dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition (Petri v Half Off Cards, Inc., 284 AD2d 444) since a store's recent knowledge that there was a specific problem within the store is qualitatively different from a mere general awareness that a dangerous condition may be present (Chin v Harp Marketing, 232 AD2d 601).

Thus, a defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition (Batista v KFC National Management Co., 21 AD3d 917; Fielding v Rachlin Management Corp., 309 AD2d 894).

Thus, a defendant may be liable for injuries resulting from a recurrent dangerous condition it creates or leaves unattended; a defendant's actual knowledge of the recurrent condition constitutes constructive notice of each specific recurrence of it (Modzelewska v City of New York, 31 AD3d 314; Erikson v J.I.B. Realty Corp., 12 AD3d 344).

Here, there is no direct testimony from a store employee that any employee had checked on the rug and area when the plaintiff fell just minutes before the alleged incident occurred (see Richardson-Dorn v Golub Corp., supra; see also McClarren v Price Chopper Supermarket, Inc., 226 AD2d 982, lv denied 88 NY2d 811). Thus, the record herein does not, prima facie, show that Pathmark's employees had so recently examined the area without seeing the bump, hump, rise in the carpet/mat that the employees would have had no reasonable opportunity to remove the bump/hump, rise just before the alleged incident.

Thus, there is an issue of fact as to whether Pathmark had notice actual or constructive of the alleged buckled mat.

Plaintiff certified she tripped over a "bunched up carpet" (see Exhibit D, pg. 21 annexed to Pathmark's motion). The first time plaintiff saw the "bunch" or "bulge" in the carpet was after she fell (p. 25). There is testimony, as noted previously, that the mats or carpets did "bunch" or "bulge" up. Clearly, the record herein contains, as viewed from an objective standard, more than just speculation as to plaintiff's alleged fall and how it might have occurred.

The plaintiff stated that Mr. Barrett, shortly after the time of the incident, had stated to an unidentified Pathmark employee that the rug was as "problem" and Mr. Barrett had told the employee "to fix it" (see Exhibit D, pgs. 70-71 annexed to Pathmark's motion).

Plaintiff's attempted reliance on the alleged statement indicating a prior awareness of the condition is inadmissible for use in opposing Pathmark's summary judgment motion in the absence of proof of Mr. Barrett's authority to speak for his employer (Montalbano v Edwards Super Food Stores, 6 AD3d 587; George v Big V. Supermarkets, Inc. , 258 AD2d 438).

The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d [*4]320). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v Journal-News, 211 AD2d 626). Thus, the burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062).

Here, Pathmark has not met its burden.

ENTER:

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J.S.C.