Kesselman v. Lever House Restaurant

• Decision Date: 02 May 2006
• Docket Number: 8212.
• Citation: 29 A.D.3d 302,2006 NY Slip Op 03447,816 N.Y.S.2d 13
• Parties: ARLENE KESSELMAN et al., Appellants, v. LEVER HOUSE RESTAURANT, Respondent.
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 302

816 N.Y.S.2d 13

2006 NY Slip Op 03447

ARLENE KESSELMAN et al., Appellants, v. LEVER HOUSE RESTAURANT, Respondent.

8212.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 2, 2006.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered October 24, 2005, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, the complaint reinstated and the matter remanded for further proceedings.

On October 31, 2003, plaintiff Arlene Kesselman, her husband and another couple, the Milsteins, were dining at defendant restaurant. Shortly after the main course, she and Mrs. Milstein proceeded to the restroom together, with Mrs. Milstein walking in front of this plaintiff. To get to the restroom, patrons had to walk down a large hallway. The hallway floor was dark, wide and shiny. Runners (carpets with rubber backing) had been placed on the floor but did not cover the entire width of it. The hallway was crowded with waiters and restaurant staff, mostly moving in the opposite direction of plaintiff.

Shortly after reaching the very beginning of the hallway, plaintiff was forced to walk to her left, onto the bare floor, to avoid several waiters who were working at a station located on the right side of the hallway. As she stepped off the runner, she slipped on a wet substance on the floor and fell, sustaining injuries.

Plaintiffs thereafter commenced this action, alleging, inter alia, that Mrs. Kesselman fell and sustained injuries as a result of a dangerous and defective condition existing on defendant's premises.

After completion of discovery, defendant moved for summary judgment dismissing the complaint, claiming that the record did not establish it had either created, or had actual or constructive notice of, the injury-causing condition on its premises. Plaintiffs opposed the motion, arguing, inter alia, that the evidence permits an inference to be reasonably drawn that defendant's employees created the wet condition that caused plaintiff's fall. This, plaintiffs argued, creates triable issues of fact precluding the granting of summary judgment.

The IAS court found that plaintiffs failed to raise an issue of fact as to whether defendant created, or had actual or constructive notice of, the condition that caused Mrs. Kesselman to fall. The court granted defendant's motion for summary judgment and dismissed the complaint.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Where a defendant moves for summary judgment and establishes a prima facie entitlement to such relief as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact (Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]). On a defendant's motion for summary judgment, the evidence should be liberally construed in a light most favorable to the plaintiff (Goldman v Metropolitan Life Ins. Co., 13 AD3d 289, 290 [2004]).

To establish negligence in this type of slip-and-fall case, a plaintiff must demonstrate, inter...