Pianforini v. Kelties Bum Steer

• Decision Date: 22 February 1999
• Citation: Pianforini v. Kelties Bum Steer, 685 N.Y.S.2d 804, 258 A.D.2d 634 (N.Y. App. Div. 1999)
• Parties: 1999 N.Y. Slip Op. 1679 Jean PIANFORINI, respondent, v. KELTIES BUM STEER, appellant.
• Court: New York Supreme Court — Appellate Division

Page 804

685 N.Y.S.2d 804

1999 N.Y. Slip Op. 1679

Jean PIANFORINI, respondent, v. KELTIES BUM STEER, appellant.

Supreme Court, Appellate Division Second Department.

Feb. 22, 1999.

Thomas M. Bona, P.C., White Plains, N.Y. (James C. Miller and Rita J. Tino of counsel), for appellant.

James J. Killerlane (David Samel, New York, N.Y. of counsel), for respondent.

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Westchester County (Rosato, J.), entered December 18, 1997, which, upon the denial of its motion pursuant to CPLR 4401, made at the close of evidence, for judgment in its favor as a matter of law, and upon a jury verdict finding it to be 100% at fault in the happening of the accident, is in favor of the plaintiff and against it in the principal sum of $314,077.22.

ORDERED that the judgment is reversed, on the law, with costs, the defendant's motion for judgment in its favor as a matter of law is granted, and the complaint is dismissed.

The plaintiff slipped and fell at the defendant restaurant's salad bar. The plaintiff testified that she had observed a few pieces of lettuce on the floor as she approached the salad bar, and that, moments later, after selecting her food and taking salad dressing from the other end of the salad bar, she slipped and fell as she returned to her table. The plaintiff admitted that she did not see, nor did she know, what caused her to fall. Similarly, she did not describe the condition of the floor's surface where she fell, nor did she testify that the lettuce she had observed only moments earlier was the substance upon which she had slipped. Indeed, the plaintiff did not even testify that she fell in the same area of the floor where she had seen the pieces of lettuce. The plaintiff simply stated that her foot slid on "something".

In order to establish a prima facie case of negligence and hold a defendant liable for an allegedly dangerous condition, the plaintiff is required to prove that the defendant either created or had actual or constructive notice of the allegedly dangerous condition (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795; Albano v. City of New York, 250 A.D.2d 555, 672 N.Y.S.2d 413; Golding v. Powell & Dempsey, 247 A.D.2d 510, 669 N.Y.S.2d 323). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774; see also, Golding v. Powell & Dempsey, supra; Davis v. Supermarkets Gen. Corp., 205 A.D.2d 730, 731, 613 N.Y.S.2d 701). Actual notice may be found where the defendant created the condition, or was in fact aware of its existence prior to the accident (see, Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246...