| Kramer v SBR & C |
| 2009 NY Slip Op 03699 [62 AD3d 667] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Jean Kramer et al., Respondents, v SBR & C, DoingBusiness as Vanderbilt at South Beach, et al., Appellants. |
—[*1] Bernadette Panzella, P.C., New York, N.Y. (Robert A. Mulhall of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal (1) from anamended order of the Supreme Court, Richmond County (Maltese, J.), dated March 11, 2008,which denied their motion for summary judgment dismissing the complaint, and (2), as limitedby their brief, from so much of an order of the same court dated May 19, 2008, as, uponreargument, vacated an order of the same court dated February 29, 2008, granting their motionfor summary judgment dismissing the complaint, and, in effect, adhered to the determination inthe amended order denying their motion for summary judgment dismissing the complaint.
Ordered that the appeal from the amended order dated March 11, 2008 is dismissed, as thatorder was superseded by the order dated May 19, 2008, made upon reargument; and it is further,
Ordered that the order dated May 19, 2008 is reversed insofar as appealed from, on the law,upon reargument, the amended order dated March 11, 2008 is vacated, and the order datedFebruary 29, 2008, granting the defendants' motion for summary judgment dismissing thecomplaint is reinstated; and it is further,
Ordered that one bill of costs is awarded to the defendants.
On December 2, 2005 the plaintiff Jean Kramer (hereinafter the injured plaintiff) attended[*2]a retirement party at a catering hall owned and operated bythe defendants. During the cocktail hour, a table containing food, including strawberries, wasstationed on the dance floor. When the cocktail hour ended, an employee of the defendantsmoved the table off the dance floor and to the side of the room. At least 45 minutes later, whiledancing with her granddaughter, the injured plaintiff felt her foot "stick," and she fell.Immediately after her fall, she noticed several "[f]resh but squished" strawberries on the floor;one was on her shoe. The injured plaintiff and her husband, suing derivatively, thereaftercommenced this action against the defendants, claiming, in effect, that the strawberries on thefloor—rather than the mere placement of the food table—was a dangerous conditioncaused by the defendants. After discovery was completed, the defendants moved for summaryjudgment dismissing the complaint on the ground that the evidence established, prima facie, thatthey did not cause the alleged dangerous condition and did not have actual or constructive noticeof it. The Supreme Court initially granted the motion, thereafter denied the motion in anamended order, and, upon reargument, adhered to its determination in the amended order. Wereverse the order made upon reargument insofar as appealed from.
The governing principles here are familiar. In general, a defendant who moves for summaryjudgment in a slip-and-fall case has the initial burden of establishing, prima facie, that it neithercreated the hazardous condition nor had actual or constructive notice of its existence (see Sloane v Costco Wholesale Corp.,49 AD3d 522, 523 [2008]; Calo v Bel-Mar Spa, Inc., 38 AD3d 488 [2007]; Marshall v Jeffrey Mgt. Corp., 35AD3d 399, 400 [2006]; Joachim v1824 Church Ave., Inc., 12 AD3d 409 [2004]). To provide constructive notice, "a defectmust be visible and apparent and it must exist for a sufficient length of time prior to the accidentto permit defendant's employees to discover and remedy it" (Gordon v American Museum ofNatural History, 67 NY2d 836, 837 [1986]; see Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837, 838 [2005]).
Under the circumstances of this case, the defendants' submissions, consisting principally ofthe deposition testimony of the injured plaintiff and her husband, were sufficient to establish,prima facie, that the defendants did not create the alleged dangerous condition and did not havenotice, actual or constructive, of its existence. The plaintiffs' theory was that the strawberrieswhich allegedly caused the accident fell to the dance floor from the food table and remainedthere for at least the 45-minute period between the time the defendants' employee removed thetable and the time the injured plaintiff fell. However, the deposition testimony submitted by thedefendants in support of their motion established that the injured plaintiff did not see anystrawberries on the floor prior to her fall, that her husband, who had taken food from the tableand had later watched the employee remove the table from the dance floor, did not see anystrawberries on the floor prior to the accident and did not see any food fall from the table as itwas being removed, and that neither the injured plaintiff nor her husband was aware of anyoneelse at the party who saw any strawberries fall from the food table, or ever saw or complained ofstrawberries on the floor prior to the accident (see West v DeJesus, 306 AD2d 402, 403[2003]; Calo v Bel-Mar Spa, Inc., 38 AD3d at 488-489; cf. Bruk v Razag, Inc., 60 AD3d715 [2009]). In opposition, the plaintiffs failed to raise a triable issue of fact (see West vDeJesus, 306 AD2d at 403).
In light of the foregoing, we need not reach the defendants' remaining contention. Skelos,J.P., Fisher, Miller and Eng, JJ., concur.