VALENTA v. SPRING STREET NATURAL (2019)

Defendants established prima facie that they neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (e.g. Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853 [2017];  Perez v. River Park Bronx Apts., Inc., 168 A.D.3d 465, 466, 91 N.Y.S.3d 78 [1st Dept. 2019] ).  Among other things, defendants' manager received no complaints concerning the floor and saw nothing on the floor when he inspected in the morning or later, around ten minutes before plaintiff fell (see Fink v. Board of Educ. of City of N.Y., 117 A.D.2d 704, 705, 498 N.Y.S.2d 440 [2d Dept. 1986], lv denied 68 N.Y.2d 607, 506 N.Y.S.2d 1032, 498 N.E.2d 433 [1986] ).  The evidence that neither plaintiff nor defendants' employees saw the slippery substance on the floor until after plaintiff fell demonstrates that it was not sufficiently visible and apparent to charge defendants with constructive notice (see Gomez v. J.C. Penny Corp., Inc., 113 A.D.3d 571, 979 N.Y.S.2d 323 [1st Dept. 2014];  Siciliano v. Garden of Eden, Inc., 12 A.D.3d 319, 786 N.Y.S.2d 148 [1st Dept. 2004] ).

Furthermore, testimony by defendant's manager that the porter cleaned the restaurant floor every night with a solution of water and vinegar is sufficient to establish a lack of constructive notice (see Harrison v. New York City Transit Authority, 94 A.D.3d 512, 514, 941 N.Y.S.2d 622 [1st Dept. 2012] ).

In opposition, plaintiff failed to raise a triable issue of fact.  Plaintiff's speculation that her fall could have been caused by the porter's use of a vinegar and water mixture to clean the floors is insufficient to sustain a cause of action (see Acevedo v. York Intl. Corp., 31 A.D.3d 255, 257–258, 818 N.Y.S.2d 83 [1st Dept. 2006], lv denied 8 N.Y.3d 803, 830 N.Y.S.2d 699, 862 N.E.2d 791 [2007] ).  The wet or greasy substance on the floor of a busy restaurant was a transient condition that could have appeared at any point after the porter finished cleaning the floors in the morning (see Perez, 168 A.D.3d at 466, 91 N.Y.S.3d 78).

We have considered the parties' remaining arguments and find them unavailing.