| Steisel v Golden Reef Diner |
| 2009 NY Slip Op 08002 [67 AD3d 670] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Marilyn Steisel et al., Appellants, v Golden Reef Diner etal., Respondents. |
—[*1] Robert J. Passarelli, Babylon, N.Y. (Robert A. Abiuso of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Brandveen, J.), dated June 18, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Marilyn Steisel (hereinafter the plaintiff) allegedly was injured when sheslipped and fell on a greasy substance on the floor of the defendant Golden Reef Diner. Afterissue was joined, the defendants moved for summary judgment dismissing the complaint on theground that they did not create or have actual or constructive notice of the alleged hazardouscondition.
Contrary to the plaintiffs' contention, the defendants' motion for summary judgmentdismissing the complaint was timely (see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561[2006]). A motion is made when a notice of motion is served (see CPLR 2211). Theplaintiffs concede that the deadline for making the motion in this case was February 26, 2008,and the defendants established that the motion was made on February 25, 2008, when it wasserved by mail on the attorneys for the plaintiffs (see Rivera v Glen Oaks Vil. Owners,Inc., 29 AD3d at 561).
"To establish a prima facie case of negligence, a plaintiff in a slip-and-fall case mustdemonstrate that the defendants either created the condition which caused the accident, or hadactual or constructive notice of the condition" (Pomerantz v Culinary Inst. of Am., 2 AD3d 821, 821 [2003][internal quotation marks omitted]). The defendants established their prima facie entitlement tojudgment as a matter of law by submitting the deposition testimony of the plaintiff and herhusband, which indicated that each of them had walked through the general area where theaccident occurred, without incident, only minutes prior to the occurrence, and that neither ofthem noticed or felt any substance on the floor at that time. The plaintiff's testimony that, afterthe accident, she observed a greasy substance on the floor, which was "dirty and smudgy" andcontained food particles, was insufficient to raise a triable issue of fact with respect to notice(see Cuddy v Waldbaum, Inc., 230 AD2d 703, 704 [1996]). Accordingly, the SupremeCourt properly granted the defendants' motion for summary judgment dismissing the complaint.Mastro, J.P., Miller, Angiolillo and Austin, JJ., concur. [See 2008 NY Slip Op31837(U).]