| Kornreich v Young Men's & Young Women's HebrewAssn. of Boro Park, Inc. |
| 2015 NY Slip Op 07625 [132 AD3d 815] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Sara Kornreich et al., Respondents, v YoungMen's and Young Women's Hebrew Association of Boro Park, Inc., Appellant, et al.,Defendant. |
Gordon & Silber, P.C., New York, N.Y. (Charles V. Weitman and Andrew B.Kaufman of counsel), for appellant.
Isaacson Schiowitz & Korson, LLP, Rockville Centre, N.Y. (Martin Schiowitzof counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant YoungMen's and Young Women's Hebrew Association of Boro Park, Inc., appeals from anorder of the Supreme Court, Kings County (Pfau, J.), dated May 16, 2014, which deniedits motion for summary judgment dismissing the complaint insofar as asserted againstit.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Young Men's and Young Women's Hebrew Association of Boro Park, Inc., forsummary judgment dismissing the complaint insofar as asserted against it is granted.
The injured plaintiff allegedly slipped and fell on a wet condition in a room at theappellant's premises, which contained a whirlpool, sauna, and showers. The injuredplaintiff, and her husband suing derivatively, commenced this action against theappellant, among others. The appellant moved for summary judgment, contending, interalia, that it cannot be held liable for the injured plaintiff's accident since the wetcondition of the room was necessarily incidental to its use. The Supreme Court denied itsmotion.
The appellant established its prima facie entitlement to judgment as a matter of lawby demonstrating that the wet condition of the area where the injured plaintiff fell wasnecessarily incidental to its use as a whirlpool, sauna, and shower room, and that itcannot be held liable for the purportedly wet condition (see Rizzo v Sherwin-WilliamsCo., 49 AD3d 847, 849 [2008]; Martinez v City of New York, 276AD2d 756 [2000]; Valdez v City of New York, 148 AD2d 697 [1989];Sciarello v Coast Holding Co., Inc., 242 App Div 802 [1934], affd 267NY 585 [1935]). In opposition, the plaintiffs failed to raise a triable issue of fact. Theinjured plaintiff's affidavit, in which she stated that the floor was excessively wet,contradicted her prior deposition testimony and was insufficient to raise a triable issue offact (see Bluth v Bias YaakovAcademy for Girls, 123 AD3d 866 [2014]; Patsis v Nicolia, 120 AD3d 1326, 1328 [2014]). Theaffidavit of nonparty Toby Landau should not have been considered in determining themotion, since she was not previously identified during discovery (see Perez v NewYork City Hous. Auth., [*2]75 AD3d 629, 630[2010]; Andujar v Benenson Inv. Co., 299 AD2d 503 [2002]). The affidavit ofthe plaintiffs' daughter, who arrived at the scene of the accident 30 to 45 minutes after itoccurred, failed to raise a triable issue of fact as to whether the floor was excessively wetwhen the incident occurred (see generally Andujar v Benenson Inv. Co., 299AD2d 503 [2002]).
Accordingly, the Supreme Court should have granted the appellant's motion forsummary judgment dismissing the complaint insofar as asserted against it. Eng, P.J.,Chambers, Roman and Barros, JJ., concur.