| Moss v Capital Dist. Regional Off-Track Betting Corp. |
| 2011 NY Slip Op 09237 [90 AD3d 1379] |
| December 22, 2011 |
| Appellate Division, Third Department |
| Stephen Moss, Respondent, v Capital District Regional Off-TrackBetting Corporation, Respondent, and Michael P. Verdile Sr. et al.,Appellants. |
—[*1] Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, L.L.P., NewYork City (Danielle Elias of counsel), for Stephen Moss, respondent. Law Office of Theresa J. Puleo, Syracuse (Joseph R. Racheco II of counsel), for CapitalDistrict Regional Off-Track Betting Corporation, respondent.
Egan Jr., J. Appeal from that part of an order of the Supreme Court (Platkin, J.), enteredAugust 19, 2010 in Albany County, which partially denied a motion by defendants Michael P.Verdile Sr. and Thoroughbred Caterers, Ltd. for summary judgment dismissing the amendedcomplaint and all cross claims against them.
In December 2003, plaintiff slipped and fell at a facility owned by defendant Capital DistrictRegional Off-Track Betting Corporation (hereinafter OTB) and located in the City of Albany. Atthe time of the incident, the food concession at the facility was operated by defendants MichaelP. Verdile Sr. and Thoroughbred Caterers, Ltd. (hereinafter collectively referred to as defendants)pursuant to a lease agreement between defendants and OTB. On the [*2]day in question, plaintiff had been in the facility for approximately90 minutes prior to his fall, during which time he traversed the set of carpeted stairs leading fromthe mezzanine to the betting area at least two or three times without incident. When plaintiffwent to place another bet, however, he slipped at the top of the stairs and fell forward. After hisfall, plaintiff examined the carpeting and, with his hand, felt a wet spot—circular in shapeand six to eight inches in diameter—at the top of the stairs. Plaintiff reported the incidentto one of OTB's managers and, after placing additional bets, left the facility.
Plaintiff thereafter commenced this personal injury action against OTB and defendants and,following joinder of issue and discovery, defendants moved for summary judgment.[FN*]Supreme Court partially granted the motion, finding that although defendants indeed establishedthat they did not have actual or constructive notice of the allegedly hazardous condition, theyfailed to demonstrate that they did not affirmatively create such condition. Defendants nowappeal from so much of Supreme Court's order as denied their motion for summary judgmentdismissing the amended complaint in its entirety and all cross claims against them.
Contrary to Supreme Court's finding, defendants were not obligated to "affirmativelyforeclose the possibility" that one of their employees created the wet or slippery condition thatallegedly caused plaintiff's injuries. Defendants were, however, required to establish that theymaintained the premises in a reasonably safe condition and, insofar as is relevant to this appeal,did not affirmatively create the hazard alleged (see Cietek v Bountiful Bread of Stuyvesant Plaza, Inc., 74 AD3d1628, 1629 [2010]; Knapp v GolubCorp., 72 AD3d 1260, 1261 [2010]). This they failed to do.
Verdile's examination before trial testimony establishes—at best—thatdefendants' managers and wait staff generally were aware that they were to be on the lookout forany spills that might occur during the course of the day. Indeed, when asked if defendants hadany specific policies or procedures governing the inspection of the premises and the actions to betaken if any spills were encountered, Verdile simply replied, "If there was something on the floor,we picked it up." Although Verdile apparently was the manager on duty on the day of plaintiff'saccident, noticeably absent from either his affidavit or examination before trial testimony wasany statement regarding his specific observations or inspection of the heavily trafficked areawhere plaintiff's accident occurred (seeNorse v Saratoga Harness Racing, Inc., 81 AD3d 1063, 1064 [2011]; Van Steenburgv Great Atl. & Pac. Tea Co., 235 AD2d 1001, 1001 [1997]; cf. Edwards v Wal-MartStores, 243 AD2d 803, 803 [1997]; compare Fontanelli v Price Chopper Operating Co., Inc., 89 AD3d1176, 1177 [2011] [premises inspected five minutes before the accident]; Perry v Cumberland Farms, Inc., 68AD3d 1409, 1410 [2009] [parking lot free of debris 30 minutes prior to accident], lvdenied 14 NY3d 706 [2010]; Cerkowski v Price Chopper Operating Co., Inc., 68 AD3d 1382,1383 [2009] [area where accident occurred inspected every 8 to 10 minutes]). Additionally,defendants did not offer any testimony or affidavits from the remainder of their employees onduty that day (see Hagin v Sears,Roebuck & Co., 61 AD3d 1264, 1265 [2009]; compare Salerno v North Colonie Cent. [*3]School Dist., 52 AD3d 1145, 1146 [2008]; Tenkate v Tops Mkts., LLC, 38 AD3d987, 988 [2007]).
It is true, as defendants point out, that plaintiff could not identify the substance comprisingthe nearly invisible wet spot on the carpet—discovered by plaintiff only after he felt thecarpet with his hand following his fall—and, further, that plaintiff did not know the causeor origin of the alleged spill, i.e., whether one of defendants' employees spilled a drink andneglected to promptly clean it up or whether a fellow OTB patron en route to place a bet causedthe alleged spill only moments before plaintiff's accident. Plaintiff's ability to prevail at trial,however, is not the issue on this motion, and the sufficiency of plaintiff's proof need not detain uswhere, as here, "defendant[s] failed to meet [their] evidentiary burden in the first instance"(Van Steenburg v Great Atl. & Pac. Tea Co., 235 AD2d at 1001; see Edwards vWal-Mart Stores, 243 AD2d at 803-804). Accordingly, defendants' motion for summaryjudgment was properly denied.
Mercure, A.P.J., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order isaffirmed, with one bill of costs.
Footnote *: Plaintiff initially commencedthe action solely against OTB, which, in turn, commenced a third-party action against defendants.Thereafter, plaintiff filed an amended complaint against OTB and defendants, thereby subsumingthe third-party action.