Mills v P. Hendel Prods.

[*1] Mills v P. Hendel Prods. 2004 NY Slip Op 50686(U) Decided on June 22, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 22, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2003-118 K C

FRANK MILLS and ROXANE MILLS, Respondents,

against

P. HENDEL PRODUCTS d/b/a McDONALD'S RESTAURANT, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered November 7, 2002, which denied its unopposed motion for summary judgment.

Order unanimously reversed with $10 costs and defendant's motion for summary judgment granted.

Plaintiffs Frank Mills and Roxanne Mills commenced this action to recover damages for personal injuries Frank Mills sustained after he slipped on a liquid located on the floor of defendant's bathroom. His wife, Roxanne Mills, asserted a derivative
cause of action. "In a slip and fall case, the plaintiff must demonstrate that the defendant created the dangerous condition that caused the accident or that it had actual or constructive notice of that condition and failed to remedy it within a reasonable time" (Vlachos v Weis Mkts., 303 AD2d 677, 678 [2003]). In support of its motion for summary judgment, defendant annexed to its moving papers the transcript of the examination before trial of Frank Mills wherein he testified that he did not know what type of liquid was on the floor, where it came from or how long it was there. A manager of defendant's restaurant who was working on the date of the incident testified at her examination before trial that an employee was assigned to clean the bathrooms and that the restaurant's managers, as part of their duties, inspected the bathrooms [*2]approximately every 15 minutes to one-half hour. However, the manager could not remember when she inspected the bathrooms on the date of the accident which was more than 33 months before she was deposed.

In view of the foregoing, defendant, on its motion, which was unopposed, made a prima facie showing that it did not create the condition or have notice of its existence (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986];
Manzione v Wal-Mart Stores, 295 AD2d 484 [2002]; Monte v T.J. Maxx, 293 AD2d 722 [2002]; Strowman v Great Atl. & Pac. Tea Co., 252 AD2d 384 [1998]). Accordingly, defendant's motion for summary judgment should have been granted.
Decision Date: June 22, 2004