Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion by the defendant for summary judgment dismissing plaintiff's complaint.

Papers:Numbered:

Notice of Motion, Affirmation, Exhibits..................1

Affirmation in Opposition, Exhibits.........................2 [*2]

In this action seeking damages for personal injuries allegedly sustained by the plaintiff, Michelle Galvis, in an accident that occurred in defendant's supermarket on the evening of July 8, 2006, the defendant, King Kullen Grocery Co., Inc., has moved for summary judgment dismissing the complaint on the ground that there is no liability.

On this motion, the defendant relies on the deposition testimony of the plaintiff, Michelle Galvis, and the defendant's night manager, Patrick Caporuscio, who had responded to the scene of the accident. The plaintiff was six months pregnant at the time of the accident. According to her deposition testimony, she slipped and fell on a puddle of water in the frozen food aisle of defendant's store and while on the ground, she observed water coming out from one of the refrigeration cases in that aisle. She had seen a man mopping the floor in the diary food aisle, near the front of the store, but her accident occurred in the frozen food aisle, toward the back of the store. The defendant's night manager confirmed that he found the plaintiff on the floor toward the back of the frozen food aisle. He did not look at the floor in the area where the plaintiff had fallen, but he did see water on the floor of the diary aisle where a floor service was cleaning the floor, about fifteen to twenty feet from where the plaintiff had fallen. Defendant's witness admitted that the store occasionally had problems with the refrigeration units in that the fans would ice up and go out, causing the temperature of the units to rise. He recalled that this had happened with the refrigerator cases in the dairy food aisle but he did not remember any problem with the freezers in the frozen food aisle.

The proponent of a summary judgment motion must make 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. Failure to make such a showing requires denial of the motion,

regardless of the sufficiency of the opposing papers. (CPLR 3212 [b]; JMD Holding Corp. v

Congress Fin. Corp., 4 NY3d 373, 384 Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; also see Zuckerman v New York, 49 NY2d 557). In order to demonstrate entitlement to summary judgment in a slip-and-fall case,. a defendant must establish, prima facie, that it did not create the condition that allegedly caused the fall and did not have actual or constructive notice of that condition for a sufficient length of time to remedy it. The defendant cannot merely rely on gaps in the plaintiff's case to satisfy this burden (Gregg v Key Food Supermarket, 50 AD3d 1093; De Falco v BJ's Wholesale Club, inc., 38 AD3d 824; Cox v Huntington Quadrangle No. 1 Co., 35 AD3d 523; also see Yioves v T.J. Maxx, 29 AD3d 572; Habura v Austin Drugs, 6 AD3d 660; Beltran v Metropolitan Life Ins. Co., 259 AD2d 456; cf. Dworkin v Burger King Corp., 249 AD2d 538).

On this motion, the defendant does not address plaintiff's claim that she fell on a puddle of water in the frozen food aisle that had come from one of the refrigeration cases in that aisle. Instead, the defendant asserts that the plaintiff fell on a wet floor that had been washed by a cleaning service operated by the third party defendant, Cleanmaster Cleaning Services, Inc., an independent contractor for whose negligence the defendant claims it is not vicariously liable.

The defendant has failed to demonstrate that it neither created nor had actual or constructive [*3]notice of the condition in the frozen food aisle that plaintiff claims caused her fall. No evidence has been offered by the defendant as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell, as required to meet its initial burden on the issue of lack of constructive notice (see Birnbaum v New York Racing Assn, Inc., 57 AD3d 598 and cases cited therein). Therefore, the defendant has failed to satisfy its initial burden and defendant's motion for summary judgment must be denied regardless of the sufficiency of the opposing papers.

Moreover, as the owner of a store to which the general public was invited, the defendant, King Kullen Grocery Co., Inc., had a nondelegable duty to provide the public with a reasonably safe premises. Therefore, the fact that the third party defendant, Cleanmaster Cleaning Services, Inc, was an independent contractor and the defendant did not exercise control over the manner in which it performed the cleaning of the floors, did not absolve the defendant from liability for a dangerous condition caused by the third party defendant (see Backiel v Citibank, N.A., 299 AD2d 504; Arabian v Benenson, 284 AD2d 422).

Accordingly, the defendant's motion for summary judgment is denied.

This constitutes the opinion, decision, and order of the Court.

Dated: June 28, 2011

_____________________________________________

Hon. Carmen R. Velasquez.

Judge, Civil Court