Tkach v. Golub Corp., 265 A.D.2d 632 (N.Y. App. Div. 1999). · Go Syfert
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Tkach v. Golub Corp., 265 A.D.2d 632 (N.Y. App. Div. 1999). Cases Citing This Book View Copy Cite
15 citation events (10 in the last 25 years) across 2 distinct courts.
Strongest positive: Leandro v. Walmart Supercenter Store 2637 (nysd, 2021-06-30)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Leandro v. Walmart Supercenter Store 2637
S.D.N.Y. · 2021 · confidence medium
See Alami v. 215 E. 68th St., L.P., 88 A.D.3d 924, 925 (2d Dep’t 2011) (finding no constructive notice where plaintiff slipped on laundry detergent spilled approximately ten minutes earlier and spill had been reported to defendant’s employee approximately five minutes earlier); Tkach v. Golub Corp., 696 N.Y.S.2d 289, 290 (3d Dep’t 1999) (finding no material question of fact where supermarket employees ensured floor was free of spills every ten to fifteen minutes, and employee working on the date of the accident testified that she had checked the area five minutes before plaintiff fell an…
discussed Cited as authority (rule) Zupan v. Price Chopper Operating Co., Inc.
N.Y. App. Div. · 2015 · confidence medium
“It is well settled that in cases involving a slip and fall as the result of a slippery or foreign substance on a supermarket floor, the plaintiff must establish that the defendant either created the allegedly dangerous condition or had actual or constructive notice of it” (Collins v Grand Union Co., 201 AD2d 852, 852 [1994] [citations omitted]; accord Davis v Golub Corp., 286 AD2d 821, 821 [2001]; Tkach v Golub Corp., 265 AD2d 632, 633 [1999]; see McMullin v Martin’s Food of S. Burlington, Inc., 122 AD3d 1103 , 1104 [2014]).
discussed Cited as authority (rule) Alami v. 215 East 68th Street, L.P.
N.Y. App. Div. · 2011 · confidence medium
Under the circumstances of this case, the submissions of the defendants 215 and Rudin established, prima facie, that they neither created nor had actual or constructive notice of the alleged dangerous condition for a sufficient length of time to discover and remedy it (see Sloane v Costco Wholesale Corp., 49 AD3d 522, 523 [2008]; Ulu v ITT Sheraton Corp., 27 AD3d 554, 554-555 [2006]; Tkach v Golub Corp., 265 AD2d 632, 633 [1999]; Maiorano v Price Chopper Operating Co., 221 AD2d 698, 698-699 [1995]).
discussed Cited as authority (rule) Kaufman v. Quickway, Inc.
N.Y. App. Div. · 2009 · confidence medium
Contrary to plaintiffs’ suggestion at oral argument, the statements are not admissions attributable to a party, as there is no evidence that Edwards was authorized to speak on defendants’ behalf (see Loschiavo v Port Auth. of N.Y. & N. J., 58 NY2d 1040, 1041 [1983]; Tkach v Golub Corp., 265 AD2d 632, 634 [1999]).
discussed Cited as authority (rule) Tyrrell v. Wal-Mart Stores, Inc.
N.Y. App. Div. · 2000 · confidence medium
The hearsay statement of an employee is not admissible against an employer as an admission, unless the proponent of the statement can demonstrate that the admission was made within the scope of the employee’s authority (see, Loschiavo v Port Auth., 58 NY2d 1040, 1041 ; Tkach v Golub Corp., supra, at 634; George v Big V.
discussed Cited "see" Cerkowski v. Price Chopper Operating Co.
N.Y. App. Div. · 2009 · signal: see · confidence high
This is sufficient to provide prima facie evidence that defendants kept the premises in a reasonably safe condition (see Reid v Schalmont School Dist., 50 AD3d at 1324 ; see generally Walker v Golub Corp., 276 AD2d 955, 956 [2000]; Van Winkle v Price Chopper Operating Co., 239 AD2d 692, 693 [1997]) and did not have actual notice of any dangerous condition (see Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699 [1995]; see generally Tkach v Golub Corp., 265 AD2d 632, 633 [1999]).
discussed Cited "see" Davis v. Golub Corp.
N.Y. App. Div. · 2001 · signal: see · confidence high
Corp. v De Premis, 225 AD2d 1003, 1004 ; see, Tkach v Golub Corp., 265 AD2d 632, 633 ) when an acceptable excuse is submitted or a demonstration is made that the hearsay is “of sufficient probative force to defeat a motion for summary judgment” (Walker v Golub Corp., supra, at 957), neither of these requirements has been satisfied here.
discussed Cited "see, e.g." Fitzpatrick v. Currie
N.Y. App. Div. · 2008 · signal: see also · confidence medium
Notably, plaintiffs response did not include the opinion of any expert on the design and functioning of an air bag. 2 While the opinion of an expert may not always be necessary in establishing a products liability case, the complex issues involved in the design and operation of an air bag make expert proof imperative, especially, where—as here—Subaru’s motion is supported by the opinion of an expert (compare Preston v Peter Luger Enters., Inc., 51 AD3d 1322, 1324 [2008], with Steuhl v Home Therapy Equip., Inc., 51 AD3d 1101, 1104-1105 [2008]; see also Tkach v Golub Corp., 265 AD2d 632, 6…
discussed Cited "see, e.g." Woltner v. Weiss
N.Y. App. Div. · 2000 · signal: see also · confidence low
Assuming, without deciding, that Woltner indeed slipped on a clear, plastic hanger outside the entrance to the store, the case law makes clear that a plaintiff in a slip and fall case such as this must establish that the defendant either created the dangerous or defective condition or had actual or constructive notice thereof (see, Malossi v State of New York, 255 AD2d 807 ; see also, Tkach v Golub Corp., 265 AD2d 632, 633 ).
Retrieving the full opinion text from the archive…
Helen Tkach
v.
Golub Corporation
Appellate Division of the Supreme Court of the State of New York.
Oct 14, 1999.
265 A.D.2d 632
1999 N.Y. App. Div. LEXIS 10350
III.
Cited by 11 opinions  |  Published
—Crew III, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered July 8, 1998 in Schenectady County, which granted defendants’ motion for summary judgment dismissing the complaint.

Plaintiff commenced this action against defendants seeking to recover for injuries she allegedly sustained when she slipped and fell at the Price Chopper supermarket in the Town of Cobleskill, Schoharie County, on December 4, 1996. Plaintiffs[*633] fall occurred near a self-service display case that held packages of cooked chicken, and the substance upon which plaintiff slipped was identified by store personnel as most likely to be chicken grease. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint contending, inter alia, that defendants neither created nor had actual or constructive notice of the condition that allegedly caused plaintiff’s fall. Supreme Court granted defendants’ motion, prompting this appeal by plaintiff.

We affirm. “It is well settled that in cases involving a slip and fall as the result of a slippery or foreign substance on a supermarket floor, the plaintiff must establish that the defendant either created the allegedly dangerous condition or had actual or constructive notice of it” (Collins v Grand Union Co., 201 AD2d 852). This plaintiff failed to do.

As a starting point, the record is devoid of any proof that defendants created the allegedly dangerous condition in question. Although plaintiff argues that defendants’ decision to place a self-service, free-standing “chicken display” in an aisle commonly used by customers was ill advised and, in essence, constituted some sort of a design defect, we need note only that such theory, even if properly before this Court, fails due to the absence of an affidavit or testimony from a qualified expert.

Equally unpersuasive is plaintiff’s contention that the record as a whole raises a question of fact as to whether defendants’ employees had actual or constructive notice of the chicken grease that apparently was present on the floor where plaintiff fell. In this regard Patricia De Lorme, who was the assistant deli manager at defendants’ Cobleskill store at the time of plaintiff’s accident, testified at her examination before trial that one of the employees assigned to the deli area would check the floors in that area every 10 to 15 minutes to ensure that no spills had occurred. Additionally, Sandra Barry, who was working in the deli department on the day in question, averred that she had checked the floors in that area five minutes before plaintiff fell and that there was no grease on the floor at that time. Such proof certainly is sufficient to sustain defendants’ initial burden on the motion for summary judgment (see, McClarren v Price Chopper Supermarkets, 226 AD2d 982, 982-983, lv denied 88 NY2d 811 [area where the plaintiff fell had been inspected 3 to 5 minutes prior to accident and found to be clean and dry]; Maiorano v Price Chopper Operating Co., 221 AD2d 698 [area where the plaintiff fell had been swept 5 to 10 minutes before accident]).

In opposition, plaintiff offered the affidavit of her investiga[*634] tor, who purportedly obtained an unsigned, unsworn statement from De Lorme who, in turn, allegedly admitted that she was aware that there was grease on the floor prior to plaintiffs fall. Although hearsay evidence is not automatically and universally excluded when offered in opposition to a motion for summary judgment (see, Chrysler First Fin. Servs. Corp. v De Premis, 225 AD2d 1003; Landisi v Beacon Community Dev. Agency, 180 AD2d 1000), we agree with Supreme Court that De Lorme’s alleged admission is not binding upon defendants absent proof that De Lorme was authorized to speak on defendants’ behalf (see, Loschiavo v Port Auth., 58 NY2d 1040, 1041; Fontana v Fortunoff, 246 AD2d 626, lv denied 92 NY2d 804; Gstalder v State of New York, 240 AD2d 541, 542; Boyle v Stiefel Labs., 204 AD2d 872, 876, lv denied 84 NY2d 803) and, hence, provides an insufficient basis upon which to deny defendants’ motion for summary judgment dismissing the complaint. Plaintiffs remaining arguments in support of reversal have been examined and found to be lacking in merit.

Mikoll, J. P., Yesawich Jr., Peters and Mugglin, JJ., concur. Ordered that the order is affirmed, with costs.