By notice of motion filed on September 21, 2010, under motion sequence number three, defendant Key Food Supermarket, Inc., (hereinafter referred to as "the movant" or "Key Food"), seeks an order granting summary judgment in its favor on the issue of liability and dismissing plaintiff's complaint pursuant to CPLR §3212. Plaintiff, Ester Kokin, opposes the motion.

Plaintiff opposes the motion with an affirmation of counsel and three annexed exhibits labeled "D," "E," and "1." They include plaintiff's verified bill of particulars, a transcript of plaintiff's deposition conducted on June 19, 2009, and plaintiff's affidavit. Key Food has replied to plaintiff's opposition with an affirmation of its counsel.

The elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty (Lapides v. State, 57 AD3d 83 [2nd Dept., 2008]). "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 [*3]accident or that the defendant had actual or constructive notice of the condition" (Scott v. Beverly Hills Furniture, 30 AD3d 577, 578 [2nd Dept., 2006], citing Goldman v. Walbaum, 248 AD2d 436 [2nd Dept., 1999]). A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected (Larsen v. Congregation B'Nai Jeshurum of Staten Island, 29 AD3d 643 [2nd Dept., 2006]).

On the defendant's motion for summary judgment to dismiss the complaint, the defendant is required to make a prima facie showing affirmatively establishing that he neither created nor had actual or constructive notice of the dangerous condition that caused plaintiff's accident (Mitchell v. Consolidated Edison, 27 AD3d 430 [2nd Dept., 2006], citing Curzio v. Tancredi, 8 AD3d 608 [2nd Dept., 2004]; see also, Baines v. G & D Ventures, Inc., 64 AD3d 528 [2nd Dept., 2009]).

Defendant has mets its burden of showing that it did not cause and create, nor had actual or constructive notice of a dangerous and defective condition for a length of time sufficient to remedy it through the sworn statements of Gary Dohn and Jeffrey Linsenbaum, its supermarket managers. The affidavit of Jeffrey Linsenbaum, dated May 13, 2010, states that he walked down the produce aisle twenty minutes before the alleged accident and that he did not notice anything on the floor. (Linsenbaum Aff. ¶ 5, May 13, 2010.) Similarly, the Affidavit of Gary Dohn, dated May 13, 2010, also states that he walked down the produce aisle within an hour of the alleged accident and did not see anything on the floor at the time. (Dohn Aff. ¶ 5, May 13, 2010.) At no time throughout the day did Gary Dohn notice parsley or water on the floor of the produce aisle, nor did anyone make any complaints to him or another store manager about parsley or water on the floor. (Dohn Aff. ¶ 6.) Furthermore, Gary Dohn stated that on the day of the alleged accident, the vegetables did not receive any type of spray, and the floors had not been mopped. (Dohn Dep. pp. 26; 28.)

Having met its burden, the burden now shifts to plaintiff to demonstrate whether there are any issues of fact that require a trial to be resolved. Plaintiff opposes Key Food's contention that it did not create or cause a defective or dangerous condition, and that it did not have actual and constructive knowledge of the condition through the sworn allegations of fact contained in her affidavit and in her deposition testimony. Plaintiff states that she has been shopping at that Key Food Supermarket since she arrived in this country in 1977. (Kokin Dep. p. 23.) Since moving to this country, she frequented the supermarket at least twice a week. (Kokin Aff. ¶ 5.) This allowed her to become familiar with the employees and their routines and duties. (Kokin Aff. ¶ 6.) One such routine involves the defendant's employees transporting saturated vegetables from the back room to the produce counter, producing wetness. (Kokin Dep. p. 40.) Plaintiff's affidavit also states that on the day of the accident, she saw employees returning wet vegetables onto the shelves without placing a wet floor sign in the aisle. (Kokin Aff. ¶ 11).

In negligence actions, where the issue involves proof of a deliberate and repetitive [*4]practice, a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion (Halloran v. Virginia Chemicals Inc., 41 NY2d 386, at 392 (1997). The Appellate Division Second Department in Rigie v. Goldman, 148 AD2d 23 (2nd Dept., 1989) also followed the Court of Appeal's reasoning set forth in Halloran in its analysis of evidence of habit. In Rigie, the Second Department held that "while we should exercise caution in permitting the admission of habit evidence to prevent such evidence from being used to establish a party's propensity to act in conformity with his general character, where the evidence of habit exhibits a uniformity of response and a sufficient number of instances of the repetitive conduct, it is admissible." Id. at 29. Applying that rule to the instant case, Key Food's routine and deliberate procedure that plaintiff introduces in her affidavit, draws the supporting inference that the defendant's employees did indeed transport saturated vegetables to the produce counters on the day of the alleged accident, causing and creating the dangerous and defective condition. Recurring conditions can be introduced to show that a party had constructive notice of a defective or dangerous condition. In order to show constructive notice, plaintiff must show that the defendant had actual knowledge of a recurrent dangerous condition (Mauge v. Barrow Street Ale House, 70 AD3d 1016, 1017 [2nd Dept., 2010]). A question of fact regarding a dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed ( see, Pinto v. Metropolitan Opera, 61 AD3d 949, 950,[2nd Dept., 2009]).

Although, the movant refutes plaintiff's claim through the deposition transcript of Gary Dohn (Dohn Dep. p. 26) the court function is not to resolve issues of credibility in the context of a summary judgment motion. Summary judgment is issue-finding rather than issue determination (Brunetti v. Musallam, 11 AD3d 280, 281 [2nd Dept., 2004]). "Furthermore, a court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned' " (Lipschutz v. Kiderman, 76 AD3d 178, 186 [2 Dept.,2010]). The court cannot and does not find that the credibility issue raised by the plaintiff is feigned.

Furthermore, it is axiomatic that summary judgment is a drastic remedy which should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits (Brunetti v. Musallam, 11 AD3d 280, 281 [2nd Dept., 2004]). Here the conflicting sworn statements creates a triable issue of fact on whether the defendant may have caused and created the dangerous and defective condition which caused plaintiff's injury. In light of the foregoing it is unnecessary to address the issues raised in defendant's reply papers pertaining to its claim that Key Food lacked notice of the dangerous condition.

The motion for summary judgment is denied.

The foregoing constitutes the decision and order of the court.

Enter:___________________________J.S.C. [*5]

Enter Forthwith:____________________________

J.S.C.