DeJesus v. CEC Entm't, Inc.

• Decision Date: 29 April 2016
• Docket Number: 185 CA 15-01364.
• Citation: 30 N.Y.S.3d 418,138 A.D.3d 1390,2016 N.Y. Slip Op. 03285
• Parties: Anthony DeJESUS and Tammy DeJesus, Plaintiffs–Respondents, v. CEC ENTERTAINMENT, INC., Doing Business as Chuck E. Cheese's, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1390

30 N.Y.S.3d 418

2016 N.Y. Slip Op. 03285

Anthony DeJESUS and Tammy DeJesus, Plaintiffs–Respondents,

v.CEC ENTERTAINMENT, INC., Doing Business as Chuck E. Cheese's, Defendant–Appellant.

185 CA 15-01364.

Supreme Court, Appellate Division, Fourth Department, New York.

April 29, 2016.

Goldberg Segalla LLP, Garden City (Heather Zimmerman of Counsel), for Defendant–Appellant.

Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for Plaintiffs–Respondents.

PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking to recover damages for injuries allegedly sustained by plaintiff Anthony DeJesus when he slipped and fell in a parking lot while exiting a restaurant owned by defendant, CEC Entertainment, Inc., doing business as Chuck E. Cheese's. Defendant moved for summary judgment dismissing the amended complaint on the ground that it neither created nor had actual or constructive notice of the allegedly dangerous condition that caused the fall. Supreme Court determined that defendant met its initial burden on the motion by establishing that there was no evidence as to the length of time the allegedly slippery condition existed and that defendant did not have notice of the condition. The court nevertheless denied the motion on the ground that plaintiffs raised triable issues of fact with respect to actual and/or constructive notice. We reverse.

We agree with defendant that it met its initial burden of demonstrating that it had neither actual notice of the alleged slippery condition nor constructive notice of its existence for a sufficient length of time to discover and remedy it because the ice and/or slush was not “visible and apparent” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ), and we conclude that plaintiffs failed to raise a triable issue of fact in opposition (see Costanzo v. Woman's Christian Assn. of Jamestown, 92 A.D.3d 1256, 1258, 938 N.Y.S.2d 404 ; see generally Zuckerman v. City of New York,

49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). We further conclude, contrary to plaintiffs' contention, that the opinions of plaintiffs' meteorologic expert are based on assumptions “that enjoy[ ] no evidentiary support in the record” (Stewart v. Canton–Potsdam Hosp. Found., Inc., 79 A.D.3d 1406, 1408, 912 N.Y.S.2d 773 ). Although plaintiffs submitted defendant's incident reports involving defendant's patrons falling in...