Ayala v Hillstone Rest. Group, Inc.

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Ayala v Hillstone Rest. Group, Inc. 2012 NY Slip Op 32186(U) August 2, 2012 Supreme Court, New York County Docket Number: 115960/10 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] - . . . .. .. Upon the foregoing papers, it is ordered that this motion is: [* 2] DONNA MILLS, J.: The plaintiff commenced the instaiit action to recover darnages for personal injuries she allegedly sustained when she slipped and fell or1 liquid in the Hillstone Restaurant at E 53"' Street on March 20, 2010 between 7.00 and 8:OOp 171 Defendant Chi-istopher Florczak, a manager at ttie restaurant on the day in question, moves for the action to tie dismissed against hini personally since he was art employee of the restaurant Defendarits Hillstotie Restailrant Group Inc et al ("Hillstone"), move for summary judytiietit on ttie gt ourid that it neither created the allegedly dangerous condition nor had actual or constructive riotice of ttie condition. R o b c : r I Hal-dirig, the nianager on duty at the datc: a i i d tirile of plaintiff's alleged accident, testified at a depositioii oii tichalf of defendants. He testified that it is every employees job to clcar up if a spill occurs, and that on the date of the alleged accident no one reported plaiiitiff's accident. As fat- as cleaning procedures, Mr. tiardiny further [* 3] testified that iri the event of a spill, whoever becomes aware of it iiiforms a colleague and stays iiearby the spill or breakage, while the colleagiie gets inlaterial to clean it up. He also testified that tiianagers walk around the dining rootn throughout the entire lunch and dinner service to make sure everything is clean, light bulbs arc working and the floors are fine. Specifically, with regard to the restroomi area, Mr. t larding also testified that restroorri checks are donu every 15 minutes, which also involves checking the area outside of ttic restrooins where plaintiff allegedly fell Plaintiff testified at her deposition that she was caused to fall as a result of spilled liquid, on a wood floor in a dimly lit hallway. Moreover, plaintiff testified that just prior to her slip that she believes a Hlllstorie etmployee walked past where her accident occurred. It1 addition, i i i her affidavit in opposition to this motion for summary judgment, she claims that she had observed Hillstotic staff on the day of the accideiit and on other occasions carry dripping wet buckets of ice to the bar and wet buckets for- carrying dirty dishes across Ihc area where slic fell. On a niotioti for summary judgment to dismiss the coinplaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishiiig tho absence of notice as a matter of law ( see, G_o~m.oI1 v. WaIdbautn_I.nc., 647 N Y.S.2d 996; Colt v. Great At!. ..&.. Pac...Te.a G o . , 209 A.D.2d 231 A.Ll.2d 673, 674, 294, 295, 6.18 Y S 2d 721; Pad.idg.v,_Biq V Supwtjiarkets, 173 A.Ll.26 1094, 570 N N.Y.S.2d 850). 111 opposition, in order [tlo prove a prima facie case of negligence iri a slip and fall case, a plaintiff is reyiiircd to show that the defeiidant created the condition which caused the accident or that the defendant had actual or constructive notice of the coiiditiori ( Bradish v . Tank Tect-i C o .216 A.TI.2ci 505, 506, 628 N.Y S.2d 807; , [* 4] Gaeta v. .Citv of N c w - Y x k , 21 3 A. D.2d 509, 624 N.Y.S.2d 47). In the instant case, the defendant sufficiently established the absence of notice as a matter of law ( see, McC,!gJen v . PrjceChopper Supermarkets, 226 A.11.2d 982, 640 N.Y.S.2d 702; Maiorang v. Price Chopper Operatinu, Co., 221 A.D.2d 698, 633 N.Y.S.2d 413). Here, defendant met its initial burden by providing the affidavit and deposition teslirnony of the manager on duty the day of the accident, which established that it was dcfcridants' policy that all employees liavo a responsibility to clean up a spill if oiic occiiis Mr. I iardirig testified that it was protocol for a a nianager to generate an accident report for c7 reported accident, and that this accident was unreported. t i e further testified that in the event of a spill, a staff member who becomes aware of it, is instructed 10 iinforrn a colleague and stay nearby the spill while the colleague gets material to clean it up. IVhe staff member is instructed to warn people away until the spill is clcaried. I lis sworri statements also established that inatlagers walk around the dining room throuyhoiit the entire lunch and dinner service to make sure everything is clean, and the floors are fine. As such, the burden shifted to plaintiff to provide evidence dcrnonstratiny a triable issue of fact ( see Raczes v . Hyr~ir, 68 A.D.3d 1521, 1522, 892 N.Y.S.2d258 [2009]; Qrkowski v. Price Chopper Operatinq Co., 68 lnc., A.D.3c-11382, 1384, 891 N.Y.S.2d 192 [2009] ) . In opposition, plaintiff does not present ariy evidence raisiriy a genuine issue of fact as to actiial or constructive notice. Plaintiff testified tl-iat just prior to her slip and fa1 slic believed a rustaut-ant ernployee by the riarne of Leena walked past where she fell, aIid proceeded irito the rcstrooni. Plaintiff stated in her deposition that after her fall she noticed a small piiddle of liquid with footprints going through it. Plaintiff also testified at [* 5] hcr depositiori that she did not see the p~Iddle liquid on the floor before her fall, did of not know why the liquid was on the floor, and did not know how long it had heen there. Moreover, although she stated that three people came to her aid after her fall, she did not know if atiyonc witnessed the accident. Additionally, the plaintiff did not fill out an accident report, nor did she speak to a manager at the restaurant regarding her fall. Contrary to the plaintiff's contentions, the record contains only speculatioil that the defendant either created the puddlc of liyiiid ( see, Xcnakis.v. Waldbauni, Inc., 237 A D.2d 433, 655 N.Y.S.2d 960) or had actual or constructive notice of the condition (see, K a i i t r m n v . Man,,-DellFood Stores, 203 A.U.2d 532, 61 1 N.Y.S.2d 230, Lowe v:. Olyiiipia R Yor-k Cos. [USA]. 238 A.D.2d 317, 6% N.Y.S.2d 930). Even if this Court were lo assur-r-iethat the liquid was visible, despite plaintiff's inability to recall s w i n g water, ttwrc is no evidence from which a jury could reasonably conclude that such condition existed for- a sufficient period of time to allow defendants to have discovered and reimedied it (O'I<gur-kev WiIIiarnson, Picket, Gross, 260 AD2d 260, 261 ) . Plaintiff's testimony a l tier deposition that the water she fell on had "footprints" does not provide sufficic:iit cvidence that the water existed for a requisite period of time to establish co list r-uctive notice. On such a state of the record, it was incumbent upon plaintiff to show that defeiidants had either achial or constructive notice of the alleged dangerous condition. Asking anything more o f a moving defendant in such circIitnstanccs OII the issue of notice would skew thc tiurden of proof, which is always on the plaintiff. (Eddy v .I-ops Friendly Mkts., 91 AD2d 1203, affd 59 NY2d 692; see Beiiware v Big V Supwmarkets, .. . 177 AD2d 846 [3d Dept 19911). [* 6] It is well settled that, lithout evidei ce that the defendant created the dangerous condition or had actual notice of it, and absent a sliowirig of evidentiary facts from which a jury c;jn infer constructive nnlice fro171the arnoLitit of time that the dangerous con d it io n ex i s ted , t t 1e c:oti1p Ia i nt t ri List be d ismissed (see, K ~ Citi 0 t .r i i I1qStores, I I 1 C K 77 NY2d 847, 848; see also, C a f ~ r o ~ l n s e r r a ~ i p e ~ i a r - k e t s , 195 AD2d 681, affd 82 NY2d 787; Accordingly, it is ORDERED h a t the defendants' motion for summary judgrnent is yr-anted and the cor-riplaiiit is disniissed with costs and disbilr sernents to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; arid it is further ORDERED that t h e Clerk is directed to enter judgment accordingly. ENTER:

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