Berry v Rosa Mexicano USQ, LLC
Annotate this Case
Download PDF
Berry v Rosa Mexicano USQ, LLC 2011 NY Slip Op 32823(U) October 13, 2011 Supreme Court, New York County Docket Number: 103437/09 Judge: Debra A. James 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. ANNEDON 1011812011 [* 1] SUPREME COURT OF THE PRESENT: STATE OF NEW YORK - NEW YORK COUNTY DEBRA A. JAMES PART 59 Justice Index No.: ABIGAIL BERRY, Plaintiff, -v- 103437/09 Motion Date: 6128111 Motion Seq. No.: 02 ROSA MEXICANO USQ, LLC ROSA MEXICANO and RM MotionCa,, No,: HOSPITALITY GROUP, Defendant. The following papers, numbered 1 to 4 were read on this motion for summary judgment. PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motion: - r = % 181 Yes No OCT 1 8 2011 Upon the foregoing papers, NEW YORK Defendants move for -summary ju d g ~ ~ i ~ ~ @ F l & complaint in this slip and fall action. Plaintiff cross-moves f o r an o r d e r permitting an engineer s inspection. The accident occurred on December 2 2 , 2007, in the late afternoon/early evening at the premises owned by defendants, that the defendants were negligent in failing to maintain a safe Check One: Check if appropriate: FINAL DISPOSITION DO NOT POST 0 NON-FINAL DISPOSITION REFERENCE SETTLEISUBMIT ORDERIJUDG. [* 2] and decided to use the restroom. In order to reach the restroom, she had to walk up a staircase. Upon ascending the staircase, she claimed to have noticed a type of water fountain on the wall to h e r right. Though she does not claim to have noticed any moisture on the stairs, she apparently slipped on the stairs about a third of t h e way upstairs. Aa her r i g h t foot slipped out from underneath her, she attempttd to hold the handrail in order to break her fall. She averred that the handrail was slippery and she eventually f e l l down on all h e r limbs. Plaintiff testified that she did not know how many s t e p s she fell down b u t that the steps had no s l i p resistant material. She did not recall seeing any moisture on the steps but mentioned there was moisture on her pants, specifically her knee region. She stated that she was not aware of the identity of the wet substance on her knee. Defendants move for summary judgment submiting plaintiff s deposition testimony and photographs of the staircase which were identified by p l a i n t i f f . They also submit deposition testimony from Carlos Montoya, a General Manager of defendant Rosa Mexicano. H e testified that there had been no complaints or comments concerning the condition of the staircase prior to the accident. He did not see plaintiff on t h e day of the accident and was not: aware of her f a l l . He states that t h e premises contained a water fountain called a water wall, and that on -2- [* 3] occasion there were inspections cf t h a t area in o r d e r to prevent spraying, i Defendants seek summary dismissal of t h e complaint on the grounds that plaintiff has failed to submit any evidence tending to show that they created a defective condition on the premises that caused plaintiff's accident or that they had actual or constructive notice 'any defective condition prior to t h e accident. Defendants argue that plaintiff's claim that there was moisture on the stairs t h a t l e d to her f a l l is speculative. They contend that: plaintiff was unable to identify any moisture on t h e staircase prior to the fall or connect the moisture to t h e nearby w a t e r wall. Defendants aver that since plaintiff is unable to establish that they had timely notice of the alleged condition plaintiff is unable to sustain a c l a i m of liability. Plaintiff cross-moves f o r an order permitting an engineer's inspection of the premises. Plaintiff's counsel, following the deposition of defendants' employee, served on defendants a Demand for Discovery and Inspection and defendants have f a i l e d to comply. Counsel states that the parties sought to schedule the inspection but suspended reaching any agreement due to discussions considering a possible mediation. Plaintiff seeks an expert examination of t h e s t a i r c a s e d e s p i t e having filed a note of issue, and argues that defendant is n o t prejudiced. -3- [* 4] Plaintiff contends that there is an issue of fact as t o whether the water wall created a slippery condition on the steps. Since defendants have s t a t e d that inspections of the particular area were done on a regular basis, plaintiff argues t h a t they s h o u l d have had notice of a w e t condition. Plaintiff claims that her evidence is sufficienk to establish t h a t defendants had either actual or constructive notice. Plaintiff submits an affidavit from a Shalimar Kelly ( K e l l y ) , who claims to have been with her at the time of the accident, and to have witnessed the accident. Kelly identifies water existing on t h e stairs prior to the accident. In r e p l y , defendants argue that the proof alleged by plaintiff is insufficient to preclude summary judgment. They state t h a t the affidavit from Kelly, who was a previously undisclosed witness, is improper and lacks probative value because it contradicts plaintiff's earlier testimony and attempts to avoid the consequences of that testimony. In opposition to the cross-motion, defendants argue that as it was brought after the note of issue was filed, such application is a fishing expedition. They also dispute that plaintiff has provided a reasonable excuse f o r their belated application to inspect t h e premises. In order for a defendant to be held liable f o r a dangerous or defective condition, plaintiff must establish that defendant -4- [* 5] See Ross v B e t t v 2011). G. Reader Revocable Tryst, 86 A D 3 d 419 ( l a Dept t "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it.,, Gordon v Americap Museum of Natural History, 67 W2d 836, 837 (1986). The court finds t h a t plaintiff has failed to demonstrate that defendants created a dangerous condition on t h e staircase. While there was a water feature n e a r the staircase, t h e r e is no evidence of water on the s t a i r s at or before the accident. The Kelly affidavit hubmitted in opposition to the motion shall be disregarded. The affidavit, which attested to an eyewitness account of the scene of the accident, directly contradicts plaintiff's deposition testimony and a p p e a r s contrived, as if an attempt at overcoming weaker positions raised by plaintiff. As stated by the Court, 'chis affidavit is "insufficient to defeat defendant's motion, as [it] contradict [SI plaintiff's deposition testimony and appear[s] to be tailored to avoid the consequences of her earlier testimony. Furthermore, t h e submission of the , , affidavit, a previously undisclosed notice witness, for t h e first time in opposition to the motion f o r summary judgment is improper." Garcia v Good H o w Realty, Inc., 67 AD3d 424, 425 (lAL Dept 2009) (citations omitted). -5- . [* 6] In the absence of the creation of the dangerous condition, there must be some proof of notice, actual or constructive. Here, there is no proof of notice and no evidence that defendants had sufficient time, prior to the accident, to remedy t h e alleged condition. With respect to the cross-motion, plaintiff has failed to explain why she waited so long to move for an engineer's inspection. The defendants' submissions indicate that plaintiff had, until very recently, no interest in demanding any inspection of the premises, Even though the parties did consider mediation, there is no sufficient proof that the mediation was seriously considered. Absent is any explan3tion of the relevance of an inspection to plaintiff's claims., Moreover, plaintiff does not reveal any unusual circumstances that may have recently moved her to demand such a procedure at this late state. Metropolitan 810 7th Ave., 5 0 m3d 4 7 4 , See Miller v (1" Dept 2 0 0 8 ) . Accordingly, it is ORDERED that defendants' motion for summary judgment is GRANTED, and the complaint is dismissed with c o s t s and disbursements to defendants as taxed by the Clerk upon t h e submission of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly; and it is f u r t h e r -6- [* 7] ORDERED that plaintiff's cross-motion f o r an o r d e r allowing an engineer's inspection is DENIED. This is t h e decision and order of t h e court. Dated: October 13, 2 0 1 1 ENTER : ED OCT 1 8 2011 NEW YORK COUNTY CLERK'S OFFICE -7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
