Summary
In Jahn, which involved a slip on water, the defendant provided an affidavit from one of its owners, but it "was insufficient to establish a lack of constructive notice as a matter of law because he did not state how often he inspected the floor or that he or defendant's employees inspected the accident location prior to the accident" (117 AD3d at 473).
Summary of this case from Visone v. Goldman Sachs Headquarters LLCOpinion
2014-05-8
Lawrence D. JAHN, Plaintiff–Respondent, v. SH ENTERTAINMENT, LLC doing business as RDV, Defendant–Appellant.
Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for appellant. Rappaport Glass Levine & Zullo, LLP, Hauppauge (Michael Glass of counsel), for respondent.
Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for appellant. Rappaport Glass Levine & Zullo, LLP, Hauppauge (Michael Glass of counsel), for respondent.
TOM, J.P., ACOSTA, ANDRIAS, DeGRASSE, RICHTER, JJ.
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 injured when he allegedly slipped and fell on water as he walked across the floor. Defendant failed to establish that it lacked constructive notice of the alleged condition by demonstrating when the accident location itself was last inspected prior to plaintiff's accident ( see Rodriquez v. Concourse Vil. Inc., 104 A.D.3d 410, 959 N.Y.S.2d 916 [1st Dept.2013]; Williams v. New York City Hous. Auth., 99 A.D.3d 613, 952 N.Y.S.2d 554 [1st Dept.2012] ). Defendant's submission of an affidavit of one of its owners, was insufficient to establish a lack of constructive notice as a matter of law because he did not state how often he inspected the floor or that he or defendant's employees inspected the accident location prior to the accident ( see Lorenzo v. Plitt Theatres, 267 A.D.2d 54, 56, 699 N.Y.S.2d 388 [1st Dept.1999];Yioves v. T.J. Maxx, Inc., 29 A.D.3d 572, 815 N.Y.S.2d 119 [2d Dept.2006];compare Green v. Gracie Muse Rest. Corp., 105 A.D.3d 578, 963 N.Y.S.2d 240 [1st Dept.2013] ). The owner only averred that he and his staff performed walk throughs during the event, which was being held in a large open space, and that he found no slippery substances or dangerous conditions on the floor.
*474 Furthermore, the record presents triable issues as to whether defendant caused or created the wet condition. Contrary to defendant's contention, the nonparty affidavit submitted by plaintiff, which described a stream of water coming from stacked bags of ice, was not tailored to avoid the consequences of plaintiff's deposition testimony. Instead, it supplemented plaintiff's account by providing additional details of the source of the water that allegedly caused the accident ( see Bauman v. Homefield Bowl, Inc., 12 A.D.3d 212, 784 N.Y.S.2d 98 [1st Dept.2004] ). The nonparty affidavit provides some evidence that defendant's employees may have created the complained-of defect by leaving the bags of ice that melted ( see Yuk Ping Cheng Chan v. Young T. Lee & Son Realty Corp., 110 A.D.3d 637, 973 N.Y.S.2d 642 [1st Dept.2013];compare Stefan v. Monkey Bar, 273 A.D.2d 133, 709 N.Y.S.2d 556 [1st Dept.2000] ).