Mikoll, J., dissents and votes to affirm in a memorandum. Mikoll, J. (dissenting). In my view, Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint.
In a motion for summary judgment, the evidence must be viewed in a light most favorable to plaintiff and she must be accorded the benefit of every reasonable inference (see, Negri v Stop & Shop, 65 NY2d 625, 626). Summary judgment should not be granted if a question of fact exists or may exist.
Plaintiff, to establish prima facie negligence, must demonstrate actual or constructive notice of the condition which caused the fall (see, Torri v Big V of Kingston, 147 AD2d 743, 744). The record discloses that the store in question was open since 6:00 a.m. on the day in question. It had been snowing or raining that morning. Other customers had preceded plaintiff into the store and passed over the newly waxed floor of the entryway. Plaintiff entered at 8:00 a.m. and fell in the entryway when she stepped on the waxed floor. The store manager, Phyllis Lighthall, told her that two other people had fallen on the floor earlier that morning. Plaintiff’s affirmation to this effect must be accepted as true for purposes of the motion even though Lighthall controverts it.
The weather conditions, taken together with a newly waxed tile floor and the fact that others had fallen on the floor, are sufficient to raise a question of fact as to defendant’s negligence. Plaintiff has sustained her burden of proof in establishing constructive notice on defendant of a dangerous condition. It can reasonably be concluded that customers coming into the store before plaintiff entered had to have tracked some of the water from the rain or snow falling outside into the entry hall. Further, Lighthall’s admission that two others fell on the floor demonstrates awareness on defendant’s part of a danger*780ous condition and sufficient time to attend to it. When Light-hall said others had fallen on the floor it can also be reasonably inferred that she was talking about the freshly waxed entry hall where plaintiff fell. The dangerous condition of the floor was further attested to by a man entering immediately after plaintiff, who also slipped but did not fall as he attempted to pick plaintiff up.
The record also discloses that Bob Grass, an employee of defendant, was told by the floor cleaners to warn customers of danger as the newly waxed floor is slippery when wet. No such warning was given even though it can reasonably be inferred that customers tracked water onto the floor from outdoors. This witness has not yet been deposed because plaintiffs have not completed discovery due to declaring bankruptcy. The future role of plaintiffs’ attorney in these proceedings needs to be resolved.
Plaintiff, being entitled to every reasonable inference, has by direct and circumstantial evidence created a question of fact as to defendant’s negligence. Accordingly, Supreme Court’s decision should be affirmed.