Kalish v. Hei Hospitality, LLC

• Decision Date: 06 February 2014
• Citation: 114 A.D.3d 444,2014 N.Y. Slip Op. 00729,980 N.Y.S.2d 80
• Parties: Michael KALISH, Plaintiff–Appellant, v. HEI HOSPITALITY, LLC, etc., et al., Defendants–Respondents, Starwood Hotels and Resorts Worldwide, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 444
980 N.Y.S.2d 80
2014 N.Y. Slip Op. 00729

Michael KALISH, Plaintiff–Appellant,
v.
HEI HOSPITALITY, LLC, etc., et al., Defendants–Respondents,
Starwood Hotels and Resorts Worldwide, Inc., Defendant.

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

Feb. 6, 2014.

[980 N.Y.S.2d 81]

Gallo Vitucci Klar LLP, New York (Yolanda L. Ayala of counsel), for appellant.

Hoey, King, Epstein, Prezioso & Marquez, New York (Andrew G. Sfouggatakis of counsel), for respondents.

FRIEDMAN, J.P., SWEENY, ACOSTA, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 2, 2012, which granted defendants-respondents' motion for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

In this personal injury action, plaintiff alleged that he sustained injuries when he slipped and fell in his hotel bathroom. At his deposition, plaintiff testified that the bathroom floor appeared to be made of polished tile that was “very smooth.” On the morning of the accident, plaintiff removed his personal slippers upon entering the bathroom and placed a bath mat made of terry material on the floor in front of the tub. This mat lacked rubber backing or other material that he had seen at other hotels. After taking a shower, he dried off in the tub, exited the bathroom without incident, and started to get dressed. Several minutes later, plaintiff re-entered the bathroom. He took one step onto the bath mat which slid forward, causing him to twist his left knee, fall backward and hit the floor.

Tyrus Joubert, the hotel's executive director of housekeeping, testified at his deposition that the bathroom floor is composed of granite. The cleaning procedure is to spray the floor with disinfectant and wipe it with rags. The floors were never waxed or buffed and no other chemicals or agents were used. The bath mats are 100% cotton and do not have any kind of non-skid surface. Before the date of the accident, Joubert had not received any complaints about the bath mats, or about the bathroom floor being slippery, and he was unaware of any incidents similar to plaintiff's accident.

Plaintiff's complaint alleged that the failure to provide non-skid backing on the bath mat was a dangerous condition which caused his injuries. Plaintiff further alleged that defendants created the dangerous condition and/or that they had prior actual or constructive notice. At the conclusion of discovery, defendants moved for summary judgment dismissing the complaint. The motion court determined that defendants met their burden of proof by providing evidence that the bathroom floor was cleaned normally, but not waxed or buffed, and that the bath mat was not defective, but was a standard 100% cotton mat, widely used at the hotel with no prior complaints. It further found that plaintiff did not raise any triable issues of fact because he “failed to identify a common law, statutory, or relevant industry standard

[980 N.Y.S.2d 82]

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