| Koziar v Grand Palace Rest. |
| 2015 NY Slip Op 00848 [125 AD3d 607] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| Olga Koziar, Appellant, v Grand PalaceRestaurant, Respondent. |
Michael N. David, New York, N.Y. (Michael B. Thomas, Jr., of counsel), forappellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzelerand Timothy J. Lavin of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Lewis, J.), dated May 3, 2013, which grantedthe defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that she slipped and fell on a wet spot on a dance floor in thedefendant's catering hall.
In a slip-and-fall case, a defendant moving for summary judgment ordinarily has theburden of demonstrating, prima facie, that it did not create the alleged hazardouscondition or have actual or constructive notice of its existence for a sufficient length oftime to discover and remedy it (see Zerilli v Western Beef Retail, Inc., 72 AD3d 681, 681[2010]; Pinto v MetropolitanOpera, 61 AD3d 949, 949-950 [2009]; Flynn v Fedcap Rehabilitation Servs., Inc., 31 AD3d 602,603 [2006]; Murphy vLawrence Towers Apts., LLC, 15 AD3d 371 [2005]). However, the prima facieshowing which a defendant must make on a motion for summary judgment is governedby the allegations of liability made by the plaintiff in the pleadings (see Foster v Herbert SlepoyCorp., 76 AD3d 210, 214 [2010]; Braver v Village of Cedarhurst, 94 AD3d 933 [2012]). Inthis case, the plaintiff's pleadings alleged only that the defendant had actual notice of thecondition. Therefore, the defendant was only required to establish, prima facie, that itlacked actual notice of the condition alleged.
In support of its motion, the defendant relied upon, inter alia, the depositiontestimony of the plaintiff. That testimony alone was sufficient to establish, prima facie,that the defendant did not have actual notice of a wet condition on the dance floor priorto the accident. The plaintiff testified that it had been snowing heavily the entire day.Although the plaintiff testified that she advised a coat-check person, as well as a waiter,that there was water in the entrance lobby floor and on unspecified areas of the floor inthe main room of the catering hall, she never testified that she advised anyone from thedefendant's staff about snow, ice, or water on the dance floor prior to her [*2]accident. Additionally, her testimony concerning what herhusband told the defendant's staff was hearsay and, in any event, it did not pertainspecifically to the dance floor or any condition thereon. Furthermore, the depositiontestimony and affidavit of the defendant's manager demonstrated that he had not receivedany complaints concerning snow, ice, or water on the dance floor prior to the accident. Inopposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's contention regarding the issue of constructive notice is improperlyraised for the first time on appeal (see Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d409 [2006]).
Accordingly, the defendant's motion for summary judgment dismissing the complaintwas properly granted.
In view of the foregoing, we do not reach the defendant's remaining contentions.Mastro, J.P., Roman, Sgroi and Barros, JJ., concur.