| Mauge v Barrow St. Ale House |
| 2010 NY Slip Op 01627 [70 AD3d 1016] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Victor Mauge, Appellant, v Barrow Street Ale House etal., Respondents, et al., Defendant. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner andJudy C. Selmeci of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief and by a letter dated December 28, 2009, from so much of an order of the Supreme Court,Queens County (Agate, J.), entered January 16, 2009, as granted the motion of the defendantsBarrow Street Ale House and Barrow Street CafÉ, Inc., for summary judgment dismissingthe complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly slipped and fell down a stairwell in a bar/restaurant, as a result ofgrease which had accumulated on the second step.
In a slip-and-fall action, to impose liability upon a defendant, there must be evidence that thedefendant created the condition or had actual or constructive notice of it (see Hayden vWaldbaum, Inc., 63 AD3d 679 [2009]). On a motion by a defendant for summary judgment,only after the defendant has satisfied the threshold burden of making a prima facie showing thatit neither created the hazardous condition nor had actual or constructive notice of the hazardouscondition, will the court examine the sufficiency of the plaintiff's opposition (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851; Joachim v 1824 Church Ave., Inc., 12AD3d 409 [2004]).
Where the defendant has actual knowledge of a recurrent dangerous condition, he or she maybe charged with constructive notice of each specific recurrence of it (see Brown v LindenPlaza Hous. Co., Inc., 36 AD3d 742 [2007]; Erikson v J.I.B. Realty Corp., 12 AD3d344 [2004]; Chin v Harp Mktg., 232 AD2d 601 [1996]). A question of fact regarding arecurrent dangerous condition can be established by offering evidence that an ongoing andrecurring dangerous condition existed in the area of the accident which was routinely leftunaddressed (see McLaughlan v Waldbaums, Inc., 237 AD2d 335 [1997]). However, a"general awareness" of a condition is insufficient to constitute notice of the particular conditionthat caused the fall (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994][internal quotation marks omitted]; see Gordon v American Museum of Natural History,67 NY2d 836, 838 [1986]; Gloria v MGM Emerald Enters., 298 AD2d 355 [2002]).[*2]
Here, the Supreme Court correctly determined that thedefendants Barrow Street Ale House and Barrow Street CafÉ, Inc. (hereinafter together thedefendants), demonstrated their prima facie entitlement to judgment as matter of law. Thedefendants submitted deposition testimony of their owner, who is in charge of the dailyoperation of the bar/restaurant, that employees known as runners mopped the stairwell twice aday with a solution including a degreaser and that the runners also were responsible forconstantly monitoring the stairwell for debris and spills throughout their entire shift. In addition,the owner and the wait staff also would monitor the stairwell for debris and spills and thedefendants had received no prior complaints about grease on the steps and there were no priorslips and falls in the stairwell.
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendantscreated the dangerous condition or had actual or constructive notice of it (see Hayden vWaldbaum, Inc., 63 AD3d 679 [2009]). The accumulation of grease in this case falls into thecategory of a condition of which the defendants had a general awareness since the subjectpremises was a bar/restaurant. Since there was no evidence that there had been prior complaintsregarding a dangerous condition in the area of the accident and the defendants established thatthe area in question was sufficiently inspected, this was not a recurrent condition which can beconstrued as notice of the particular condition which caused the plaintiff to fall (seePiacquadio v Recine Realty Corp., 84 NY2d 967 [1994]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Leventhal, Lott andAustin, JJ., concur.