| Cietek v Bountiful Bread of Stuyvesant Plaza, Inc. |
| 2010 NY Slip Op 05324 [74 AD3d 1628] |
| June 17, 2010 |
| Appellate Division, Third Department |
| M. Bernice Cietek, Appellant, v Bountiful Bread of StuyvesantPlaza, Inc., Respondent. |
—[*1] Wilson, Elser, Moskovitz, Edelman & Decker, L.L.P., Albany (Elizabeth J. Grogan ofcounsel), for respondent.
Spain, J.P. Appeal from an order of the Supreme Court (Platkin, J.), entered May 29, 2009 inAlbany County, which granted defendant's motion for summary judgment dismissing thecomplaint.
On October 26, 2006, plaintiff was injured in a slip and fall accident while a patron at arestaurant operated by defendant. Plaintiff had exited the restaurant's restroom and was walkingtowards the dining area when she slipped on a small puddle of water and fell. Plaintiffcommenced this action against defendant, seeking damages for injuries sustained as the result ofthe fall. Following discovery, defendant moved for summary judgment dismissing the complaint.Supreme Court granted the motion and plaintiff now appeals.
We affirm. In order to prevail on its motion for summary judgment, defendant had the initialburden of establishing that it "maintained the premises in a reasonably safe condition and neithercreated nor had actual or constructive notice of the allegedly dangerous condition" (Candelario v Watervliet Hous. Auth.,46 AD3d 1073, 1074 [2007]; accord Perry v Cumberland Farms, Inc., 68 AD3d 1409, 1410[2009], lv denied 14 NY3d 706 [2010]). Here, defendant met its initial burden byproviding the affidavit and deposition testimony of the assistant manager on duty the day of theaccident, which established that it was defendant's policy that all employees regularly checkedthe floors for spills, discarded dishes and trash. His sworn statements also established that,although he was stationed approximately five feet from the area where plaintiff [*2]fell for three hours prior to the accident, he did not observe anywater on the floor that day, nor did he receive any complaints concerning water on the floor orwitness anyone else slip or fall in that area. As such, the burden shifted to plaintiff to provideevidence demonstrating a triable issue of fact (see Raczes v Horne, 68 AD3d 1521, 1522 [2009]; Cerkowski v Price Chopper Operating Co.,Inc., 68 AD3d 1382, 1384 [2009]).
In opposition, plaintiff did not present any evidence raising a genuine issue of fact as toactual or constructive notice. Regarding defendant creating a dangerous condition, plaintiffproffered the affidavit of an expert who determined that the friction coefficient of the restaurantfloor did not meet industry standards and concluded that the floor was unacceptably slippery wetor dry. It is well settled, however, that a cause of action for negligence cannot be maintainedagainst a building owner solely on the basis of an inherently slippery floor (see Sarmiento v C & E Assoc., 40AD3d 524, 527 [2007]; Pechtel vGould, 9 AD3d 653, 654 [2004]). Further, although summary judgment may beprecluded when an expert opinion demonstrates that a plaintiff was injured due to a deviationfrom relevant industry standards (see Portanova v Trump Taj Mahal Assoc., 270 AD2d757, 758 [2000], lv denied 95 NY2d 765 [2000]), inasmuch as plaintiff's expertreferenced an Occupational Safety and Health Administration standard, which is inapplicable asthat agency's regulations are limited to the safety of employees (see Kocurek v Home Depot,U.S.A.P., 286 AD2d 577, 580 [2001]), and failed to reference any other relevant standard,the expert affidavit failed to raise a triable issue of fact regarding defendant creating a dangerouscondition (see Suarez v D&C Mgt. Assoc., 284 AD2d 706, 707 [2001]). Accordingly,summary judgment was properly granted in defendant's favor.
Rose, Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.