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

Mario GAGLIARDI, Plaintiff–Appellant, v. COMPASS GROUP, USA, INC., et al., Defendants–Respondents.


Decided: June 20, 2019

Friedman, J.P., Richter, Kahn, Singh, JJ. Russo & Toner, LLP, New York (Josh H. Kardisch of counsel), for appellant. Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale (Robb Denney of counsel), for Compass Group USA, Inc., Restaurant Associates Events Corp., Restaurant Associates Corp., Restaurant Associates LLC, and Restaurant Associates LP, respondents. Tobias & Kuhn, New York (Curtis B. Gilfillan of counsel), for Seven Hanover Associates, LLC, respondent.

In this action where plaintiff was injured when he slipped and fell in defendants' cafeteria, defendants established their prima facie entitlement to judgment as a matter of law by showing that they neither created nor had notice of the slippery condition that caused plaintiff's fall.  Defendants submitted evidence including their cleanup inspection schedule which indicated that the cafeteria floor was inspected every 15 minutes and was inspected about two minutes prior to plaintiff's fall, and the testimony of the cafeteria manager that no liquid was observed on the cafeteria floor (see Gomez v. J.C. Penny Corp., Inc., 113 A.D.3d 571, 979 N.Y.S.2d 323 [1st Dept. 2014]; Warner v. Continuum Health Care Partners, Inc., 99 A.D.3d 636, 637, 953 N.Y.S.2d 187 [1st Dept. 2012]).

In opposition, plaintiff failed to raise a triable issue of fact.  Plaintiff's claim that the cafeteria's employees created the allegedly slippery condition by allowing an ice cube to fall on the floor is speculative.  Plaintiff testified that he did not observe anything on the floor prior to his fall, he did not see the substance that he slipped on, and he had no idea how long the liquid substance was on the floor or how it got there (see Briggs v. Pick Quick Foods, Inc., 103 A.D.3d 526, 962 N.Y.S.2d 46 [1st Dept. 2013]; Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 500, 856 N.Y.S.2d 573 [1st Dept. 2008] ).

We have considered plaintiff's remaining contentions and find them unavailing.

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