Pianforini v. Steer

• Court: New York Supreme Court — Appellate Division
• Citation: Pianforini v. Steer, 258 A.D.2d 634, 685 N.Y.S.2d 804 (N.Y. App. Div. 1999)
• Decision Date: 22 February 1999
• Parties: JEAN PIANFORINI, Respondent,<BR>v.<BR>KELTIES BUM STEER, Appellant.

258 A.D.2d 634

685 N.Y.S.2d 804

JEAN PIANFORINI, Respondent,

v.KELTIES BUM STEER, Appellant.

Decided February 22, 1999.

Bracken, J.P., Santucci, Friedmann and Florio, JJ., concur.

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 NY2d 967; Albano v City of New York, 250 AD2d 555; Golding v Powell & Dempsey, 247 AD2d 510). "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 NY2d 836, 837; see also, Golding v Powell & Dempsey, supra; Davis v Supermarkets Gen. Corp., 205 AD2d 730, 731). 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 AD2d 246, affd 64 NY2d 670).

Here there was no evidence as to what the plaintiff slipped on, and no evidence that the defendant created a condition which caused her to fall. The evidence here was consistent with a finding that someone dropped something on the floor just before the plaintiff fell. Thus, any finding that the substance upon which she fell had...