| Flahive v Union Coll. |
| 2012 NY Slip Op 07176 [99 AD3d 1151] |
| October 25, 2012 |
| Appellate Division, Third Department |
| Brian J. Flahive, Appellant, v Union College, a Division of UnionUniversity, Respondent, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Costello, Cooney & Fearon, PLLC, Camillus (Maureen G. Fatcheric of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Kramer, J.), entered July 7, 2011in Schenectady County, which granted a motion by defendant Union College for summaryjudgment dismissing the complaint against it.
While attending a banquet at the campus of defendant Union College (hereinafter defendant)in the City of Schenectady, Schenectady County, plaintiff slipped and fell while traversing ahallway that runs from the facility's ballroom to the kitchen. As he was lying on the floor,plaintiff noticed that his clothes were wet and allegedly observed soapy water on the floor. Hethereafter commenced this action seeking damages for injuries sustained as a result of his fall,specifically claiming that defendant had actual or constructive notice of the dangerous conditionand/or created the condition by way of its improper drainage for its dishwashing units. Followingdiscovery, defendant moved for summary judgment dismissing the complaint against it. SupremeCourt granted the motion, prompting this appeal.
As the proponent of the summary judgment motion, defendant bore the initial burden of[*2]establishing that it maintained the premises in a reasonablysafe condition and that it neither created the dangerous condition nor had actual or constructivenotice of such condition (see Bedell vRocking Horse Ranch Corp., 94 AD3d 1389, 1390 [2012]; Carpenter v J. Giardino, LLC, 81AD3d 1231, 1231 [2011], lv denied 17 NY3d 710 [2011]; Cerkowski v Price Chopper Operating Co.,Inc., 68 AD3d 1382, 1383 [2009]). To that end, defendant presented evidence that itswait staff walked up and down the hallway in question throughout the duration of the eventwithout incident and that there were no reports of any liquids or fluids on the floor. An employeeof defendant who supervised the wait staff explained that, if a spill occurred, defendant's policywas for the staff member responsible for the spill to immediately clean it. If that person wasunable to do so, he or she was instructed to have the dishwasher clean it up. This procedure alsoapplied when a wait staff employee discovered a slippery surface or liquid on the kitchen hallwayfloor. The evidence established that defendant routinely inspected the dishwashing units, whichare located approximately 30 feet from the area where plaintiff fell, and held regular safetymeetings to ensure that the equipment was functioning properly.
Defendant also submitted plaintiff's deposition testimony in support of its motion, whichrevealed that, prior to the incident, plaintiff traversed the hallway to the kitchen roughly four tosix times throughout the course of the evening to speak with defendant's staff, and that at nopoint in time did he see any water or other liquid on the floor. Nor did plaintiff observe anyaccumulation of water or liquid on the floor as he walked down that same hallway to reach thekitchen just minutes prior to the incident, or as he was walking back down the hallway towardsthe ballroom immediately prior to his fall. He only noticed the water as he was lying on the floor,and was unable to discern where it had come from. This evidence was sufficient to satisfydefendant's burden (see Bedell v Rocking Horse Ranch Corp., 94 AD3d at 1390).
In opposition to the motion, plaintiff asserted—for the first time—that thepuddle of water on the floor was created by defendant's negligent mopping of the kitchen hallwayfloor. There is no evidence, however, that anyone actually mopped the floor prior to the incident(see O'Neal v ServicemasterCo./Servicemaster, Inc., 22 AD3d 356, 357 [2005]; Sieber v Estee Lauder, Inc.,293 AD2d 596, 596 [2002], lv denied 98 NY2d 614 [2002]; Sanchez v DelgadoTravel Agency, 279 AD2d 623, 624 [2001], lv denied 96 NY2d 711 [2001]).Although the absence of direct evidence that defendant created the condition is not necessarilyfatal to plaintiff's claim, as plaintiff may "show[ ] facts and conditions from which the negligenceof the defendant and the causation of the accident by that negligence may be reasonably inferred"(Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744 [1986] [internal quotation marksand citations omitted]), " 'the evidence must be sufficient to permit a finding based on logicalinferences from the record and not upon speculation alone' " (Bloomer v Empire Forklift, Inc., 46 AD3d 1324, 1325 [2007],quoting Silva v Village Sq. of Penna, 251 AD2d 944, 945 [1998]; see Schneider vKings Hwy. Hosp. Ctr., 67 NY2d at 744). In addition to the absence of evidence that anyonewas mopping, plaintiff neither observed maintenance personnel nor cleaning supplies and/orequipment prior to his fall (compareBrown v Simone Dev. Co., L.L.C., 83 AD3d 544, 545 [2011]; Granera v 32nd St. 99� Corp., 46 AD3d750, 751 [2007]; Healy v ARP Cable, 299 AD2d 152, 155 [2002]). Indeed, the onlyevidence bearing on this issue was the fact that it was defendant's practice to mop the floors aftereach event. However, defendant's practice was to perform such function after all the guests andwait staff had left, and it is undisputed that banquet guests as well as wait staff were still presentat the time of plaintiff's fall. As plaintiff's theory that defendant created the dangerous conditionby negligently mopping the floor is founded upon mere speculation and surmise rather thanadmissible evidence, summary judgment was properly awarded to defendant (see Perry v Cumberland Farms, Inc., 68AD3d 1409, 1410 [2009], lv [*3]denied 14 NY3d706 [2010]; O'Neal v Servicemaster Co./Servicemaster, Inc., 22 AD3d at 357; Sieberv Estee Lauder, Inc., 293 AD2d at 596; Sanchez v Delgado Travel Agency, 279AD2d at 624).
Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, with costs.