| Jahn v SH Entertainment, LLC |
| 2014 NY Slip Op 03333 [117 AD3d 473] |
| May 8, 2014 |
| Appellate Division, First Department |
[*1]
| Lawrence D. Jahn, Respondent, v SHEntertainment, LLC, Doing Business as RDV, Appellant. |
Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), forappellant.
Rappaport Glass Levine & Zullo, LLP, Hauppauge (Michael Glass of counsel),for respondent.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered May 14,2013, which denied defendant's motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Summary judgment was properly denied in this action where plaintiff was injuredwhen he allegedly slipped and fell on water as he walked across the floor. Defendantfailed to establish that it lacked constructive notice of the alleged condition bydemonstrating when the accident location itself was last inspected prior to plaintiff'saccident (see Rodriquez vConcourse Vil. Inc., 104 AD3d 410 [1st Dept 2013]; Williams v New York City Hous.Auth., 99 AD3d 613 [1st Dept 2012]). Defendant's submission of an affidavit ofone of its owners, was insufficient to establish a lack of constructive notice as a matter oflaw because he did not state how often he inspected the floor or that he or defendant'semployees inspected the accident location prior to the accident (see Lorenzo v PlittTheatres, 267 AD2d 54, 56 [1st Dept 1999]; Yioves v T.J. Maxx, Inc., 29 AD3d 572 [2d Dept 2006]; compare Green v Gracie MuseRest. Corp., 105 AD3d 578 [1st Dept 2013]). The owner only averred that heand his staff performed walk throughs during the event, which was being held in a largeopen space, and that he found no slippery substances or dangerous conditions on thefloor.
Furthermore, the record presents triable issues as to whether defendant caused orcreated the wet condition. Contrary to defendant's contention, the nonparty affidavitsubmitted by plaintiff, which described a stream of water coming from stacked bags ofice, was not tailored to avoid the consequences of plaintiff's deposition testimony.Instead, it supplemented plaintiff's account by providing additional details of the sourceof the water that allegedly caused the accident (see Bauman v Homefield Bowl, Inc., 12 AD3d 212 [1stDept 2004]). The nonparty affidavit provides some evidence that defendant's employeesmay have created the complained-of defect by leaving the bags of ice [*2]that melted (see Yuk Ping Cheng Chan v Young T. Lee & Son RealtyCorp., 110 AD3d 637 [1st Dept 2013]; compare Stefan v Monkey Bar,273 AD2d 133 [1st Dept 2000]). Concur—Tom, J.P., Acosta, Andrias, DeGrasseand Richter, JJ.