| Green v Gracie Muse Rest. Corp. |
| 2013 NY Slip Op 02661 [105 AD3d 578] |
| April 18, 2013 |
| Appellate Division, First Department |
| Barbara Green, Respondent, v Gracie MuseRestaurant Corp., Appellant. |
—[*1] Mallilo & Grossman, Brooklyn (Beth J. Girsch of counsel), for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or aboutJuly 10, 2012, which denied defendant's motion for summary judgment dismissing thecomplaint, unanimously reversed, on the law, without costs, and the motion granted. TheClerk is directed to enter judgment accordingly.
Defendant restaurant established its entitlement to judgment as a matter of law, inthis action where plaintiff allegedly slipped and fell on a slippery substance on therestaurant's floor. Defendant demonstrated that it had no notice of the allegedly defectivecondition by submitting, inter alia, the testimony of its manager who stated that on theday of the accident, he had been on duty for several hours before plaintiff's fall, andwalked around and inspected the entire restaurant every three to four minutes. He alsotestified that he did not see any spills of food, liquid, or debris on that day, and did notreceive any complaints about such conditions. The hostess on duty at the time alsotestified that she did not receive any such complaints. Moreover, the manager observedthat the floor was clean and dry prior to the accident, and inspected the area whereplaintiff fell shortly thereafter and saw that it was still clean and dry. Plaintiff alsotestified that she passed the same area in the restaurant about 45 minutes before heraccident and did not observe a hazardous condition (see Warner v Continuum Health Care Partners, Inc., 99 AD3d636, 637 [1st Dept 2012]; compare Porco v Marshalls Dept. Stores, 30 AD3d 284 [1stDept 2006]).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff did not perceivea defective condition on the floor either prior to or subsequent to her fall. She firstobserved a greasy substance on the soles of her sandals a day later, in her hospital room.There is a lack of evidence that the substance on the bottom of her sandals was on thepart of the restaurant floor where she slipped, let alone for a long enough period of timeto permit defendant to notice it (see Berger v ISK Manhattan, Inc., 10 AD3d 510 [1st Dept2004]; Segretti v Shorenstein Co., E., 256 AD2d 234 [1st Dept 1998]).
The opinion of plaintiff's expert that the coefficient of friction of the subject area ofthe restaurant floor was below the generally accepted minimum, causing the floor to bedangerously slippery even when it was clean and dry, failed to raise a triable issue of fact.Such inherent slipperiness alone is not actionable (see DeMartini v Trump 767 5th Ave., LLC, 41 AD3d181[*2][1st Dept 2007]), and the expert failed toconnect any observation of the floor to the accident (see Reed v Piran Realty Corp., 30 AD3d 319 [1st Dept2006], lv denied 8 NY3d 801 [2007]). The expert also failed to show that thefloor's condition when he inspected it was the same as on the day of the accident, almosta year and a half earlier (seeAlston v Zabar's & Co., Inc., 92 AD3d 553 [1st Dept 2012]).Concur—Tom, J.P., Sweeny, Saxe, Román and Feinman, JJ. [PriorCase History: 2012 NY Slip Op 31792(U).]