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BETTE K. HAMMER, PLAINTIFF-RESPONDENT, v. KMART CORPORATION, DEFENDANT-APPELLANT. (APPEAL NO. 1.)

Memorandum:

Supreme Court erred in denying defendant's motion for a directed verdict at the close of plaintiff's case. Plaintiff fell on what she believed was a puddle of water on the floor of defendant's store. We reject plaintiff's contention that defendant had constructive notice of a dangerous condition because it was snowy and icy outside, and defendant knew that water may accumulate in different areas in the store ( see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969). Plaintiff failed to prove that the water on the floor where she fell was apparent and existed for a sufficient length of time prior to the fall to permit defendant's employees to discover and remedy the defect ( cf., Negri v. Stop Shop, 65 N.Y.2d 625, 626).

In addition, although plaintiff proved that defendant had a general awareness that water was present in the front area of the store when the weather was inclement ( see, Piacquadio v. Recine Realty Corp., supra), she failed to prove that defendant had actual knowledge of a recurring condition, i.e., that defendant knew that, during inclement weather conditions, water accumulated on the floor in the aisle where she fell ( cf., Migli v. Davenport, 249 A.D.2d 932, 933; Camizzi v. Tops, Inc., 244 A.D.2d 1002).

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HAMMER v. KMART CORPORATION
(Dec 30, 1999)