Torts · MBE-tested

Khaya Bender, Appellant, v. Dan's Supreme Supermarkets, Inc., Respondent

71 A.D.2d 636·New York Supreme Court, Appellate Division·1979·NY

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Opinion

Khaya Bender, Appellant, v Dan’s Supreme Supermarkets, Inc., Respondent. [MAJORITY] In a negligence action to recover damages for personal injuries, plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County, entered March 23, 1979, in favor of the defendant, upon the trial court’s dismissal of the complaint at the close of plaintiff’s case at a jury trial. Order and judgment affirmed, without costs qr disbursements. On September 29, 1976 plaintiff slipped and fell in defendant supermarket. There is nó evidence that defendant had notice of any condition or substance on the floor that could have caused the fall. "Proof of notice, either actual or constructive, has always been said to be essential to recovery by a customer who has fallen because of a foreign substance on the floor of a supermarket or store” (Cameron v Bohack Co., 27 AD2d 362, 364). Since there is no such proof here the complaint was properly dismissed. Lazer, J. P., Margett, Martuscello and Mangano, JJ., concur.