PRONK v. STANDARD HOTEL (2018)

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered November 18, 2016, which, upon reargument, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff cut his left foot on a glass votive candleholder while entering a spa pool in the “Le Bain Club,” which was owned by defendants the Standard Hotel a/k/a the Standard Highline Hotel and Andre Balazs Properties, and managed by defendant Hotels AB, LLC.

There are triable issues of fact as to whether defendants breached their duty to maintain the premises in a reasonably safe condition by placing glass candleholders on tables in close proximity to the spa pool, where people could be expected to be walking barefoot, and whether that breach proximately caused plaintiff's injuries (see Boderick v. RY Mgt. Co., Inc., 71 A.D.3d 144, 147, 897 N.Y.S.2d 1 [1st Dept. 2009] ).

Additionally, defendants never met their initial burden to show that they lacked notice.  In particular, defendants failed to show that they lacked actual notice of glass in the spa pool, because none of their witnesses testified or averred that they never received any complaints about the area before the accident (see O'Connor v. Restani Constr. Corp., 137 A.D.3d 672, 673, 29 N.Y.S.3d 8 [1st Dept. 2016] ).  Defendants failed to show that they lacked constructive notice, because their employee who was responsible for checking the spa pool averred that she did not check the pool for about five hours before the accident (see id.;  see also Jahn v. SH Entertainment, LLC, 117 A.D.3d 473, 473, 985 N.Y.S.2d 509 [1st Dept. 2014] ).  Given defendants' failure to meet their initial burden, the burden never shifted to plaintiff (see Sabalza v. Salgado, 85 A.D.3d 436, 438, 924 N.Y.S.2d 373 [1st Dept. 2011] ).