Bendavid v Cucina Rest.

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Bendavid v Cucina Rest. 2015 NY Slip Op 32215(U) November 16, 2015 Supreme Court, New York County Docket Number: 155508/12 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 ------------------------~---------------x SHULA BENDAVID AND MARVIN BENDAVID, Plaintiffs, Index No. 155508/12 -againstCUCINA RESTAURANT, WOODSTOCK CUCINA LLC AND 105-109 MILL HILL ROAD LLC, Defendants. ----------------------------------------x JENNIFER G. SCHECTER, J.: Pursuant to CPLR 3212, Defendants judgment dismissing the complaint. move for summary The motion is granted. Background Defendant 105-109 Mill Hill Road LLC owns the property located at 109 Mill Hill Road_ in Woodstock, New York. It rents the property to defendant Woodstock Cucina LLC, which runs Cucina Restaurant (Cucina) and Marvin Bendavid commenced Plaintiffs Shula Bendavid_ this action t·o recover for injuries sustained as a result of Mrs. Bendavid's fall on the front steps of Cucina. Plaintiffs urge that defendants were negligent because the steps leading to/from the. restaurant were inadequately lit [Complaint] at ~ [Supp], Ex A 37). On February 13, dinner. (Affirmation in Support 2012, the Bendavids went to Cucina for They had been there three or four times before in the evening and the lighting· conditions were substantially the [* 2] Bendavid v Cucina Restaurant Index No. 155508/12 Page 2 same (Supp, Ex E, Shula Bendavid Deposition Transcript [Shula Dep] at 2 8 : 4 - 9 ; 2 9 : 10 - 2 4 ) . On the date of the accident, when the Bendavids arrived, it was already dark and they did not have any difficulty climbing the stairs into the restaurant (Shula Dep at 30:5-8; 36:16-20). Mrs. Bendavid testified that she did not remember the lighting conditions on the date of the accident,- except to say that 34:1-4). it was dark on the steps She was, however, (Shula Dep at 32 :20-25; able to identify the steps and attest to their perceived width and that they were free of any precipitation or debris (Shula Dep at 34:5-36:10) Shula Bendavid testified that after her husband went down the stairs, she followed and she."just tripped. that she missed] one step . [She guessed ." (Shula Dep at 44:17-18). She further testified that she was not looking down at where she was stepping but rather was looking "[i]n front where [she] was heading to" but did not recall specifically what she was looking at" (Shula Dep at 45:22-25; 46:1-4). Marvin Bendavid testified to-substantially the same facts as Shula Bendavid. did not remember In addition he testified that, although he exactly, his recollection was that the photographs defense counsel showed him at the deposition were not accurate in that the steps were darker than they appeared in the photos (Supp, Ex F, Transcript [MB Dep] at 15:7-20) Marvin Bendavid Deposition [* 3] Bendavid v Cucina Restaurant Erin Winters, a Index No. 155508/12 Page 3 Cucina employee since 2008, that she did not work on the day of 'the testified a~cident_(Supp, Ex G, Erin Winters Deposition Transcript [EW Dep] at 22:20-14). was unaware of any complaints- concerning the condition of the stairs or of any individuals, Bendavid, tripping or b~ing injured lighting by the stairs (EW Dep at as a She lighting, besides Mrs. result of the 43:4~22) Michael Sarandon has worked at Cucina on and off since 2007 as a bartender (Supp, Ex H, Michael-Sarandon Deposition Transcript [MS Dep] at ·5:15-20). He testified that he did not recall the any prior incidents on stairs or anyone ever complaining to him about the lighting or the stairs (MS Dep at 29:8-17) Analysis. Summary Judgment is a dr.ast.ic remedy that shou-ld not· be granted if there is any·doubt as to.the existence of material triable issues(see Glick & Doller;:k v Tri-Pac Export Corp, 22 NY2d 439, 441 [1968] [denial of summary judgment appropriate where an issue is "arguable'; J; Sosa· v LLC, 101 AD3d 490, 20~2]). movant to judgment make as a a 493 [1st Dept prima matter of facie law 46th Street showing by Develop. The burden is on the of entitlement presenting evidence to in [* 4] Bendavid v Cucina Restaurant admissible form demonstrating the absence of material facts. burden Index No. 155508/12 Page 4 then any disputed Once the movant has made this showing, shifts competent evidence, to the opponent to establish, the through that there is a material issue of fact that warrants a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendants met their burden of establishing entitlement to judgment. condition They demonstrated that there was no dangerous that they created or had notice of. cucina employees testified that there.have been no other incidents on the restaurant's front steps complaints about the lighting. and that there have been no In fact, plaintiffs had been .. to the restaurant three or four times before, under the same conditions, and never complained about the lighting or the stairs. In response, plaintiffs failed to raise a triable issue of fact. Other than their own testimony, plaintiffs failed to provide any evidence that the lighting was insufficient or that had there been more light, Mrs. Bendavid would not have fallen (see Broadie v Gibco Enters. Ltd, 67 Ad3d 418 [1st Dept 2009] [testimony alone insufficient' as a matter of law to raise triable issue as to adequacy of lighting]; Branham v Loews Orpheum Cinemas, Inc., 31 AD3d 319 [1st Dept 2006], affd [* 5] Index No. 155508/12 Page 5 Bendavid v Cucina Restaurant 8 NY3d 931 (2007]; Reyes v La Ronda Cocktail Lounge, 27 Ad3d 397 [1st Dept 2006] [assertion that area was "dark" or "dim" insufficient]; Christoforou v Lown, 120 AD2d 387, 390 [1st Dept 1986] ["It is basic that one alleging inadequate lighting must show a breach of duty of reasonable care" and objective proof is required]; see also Shula Dep at 45: 22-25; 46: 1-4 [Mrs. Bendavid was not looking down at where she was stepping but rather was looking "(i)n front where (she) was heading to"]). No issue was raised, moreover, with the structural soundness of the steps and it is undisputed that the steps were free of any foreign substance. Accordingly, it is ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed without costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. This constitutes the Decision and Judgment of the Court. Dated: November 16, 2015 . SCHECTER

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