ULU v. ITT SHERATON CORPORATION (2006)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Hart, J.), dated October 19, 2004, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff alleged that she sustained injuries when she slipped and fell into a bathtub in a second floor hallway bathroom while attending a conference at a hotel owned and operated by the defendants.   Following the accident, she allegedly observed moisture on the bathroom floor and surmised that she had slipped on it.   The defendants moved for summary judgment, arguing that they neither created the condition nor had actual or constructive notice of it.   The Supreme Court denied the motion.   We reverse.

 “A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Curtis v. Dayton Beach Park No. 1 Corp., 23 A.D.3d 511, 806 N.Y.S.2d 664;  see Britto v. Great Atl. & Pac. Tea Co., Inc., 21 A.D.3d 436, 799 N.Y.S.2d 828).   The defendants submitted evidence that no hallway bathrooms in the hotel were equipped with bathtubs, and that only fifth floor conference rooms had bathrooms which contained bathtubs.   Thus, the accident could not have occurred in the manner or at the location described by the plaintiff.   Moreover, the defendants established that, in connection with the conference which the plaintiff attended, the hotel followed a policy of inspecting conference room facilities, including conference and hallway bathrooms, every 15 to 25 minutes, and promptly corrected any problems which those inspections revealed.   This showing demonstrated the defendants' prima facie entitlement to judgment as a matter of law (see generally Friedenreich v. Roosevelt Field Mall Mgt., 18 A.D.3d 808, 795 N.Y.S.2d 454;  Grottano v. City of New York, 304 A.D.2d 713, 757 N.Y.S.2d 795;  Stone v. Long Is. Jewish Med. Ctr., 302 A.D.2d 376, 754 N.Y.S.2d 352).

In arguing that the defendants were on constructive notice of the alleged condition, the plaintiff was required to raise a triable issue of fact by submitting evidence that the condition was visible and apparent for a sufficient period of time to afford the defendants' employees a reasonable opportunity to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Crawford v. AMF Bowling Ctrs., 18 A.D.3d 798, 796 N.Y.S.2d 687).   The plaintiff failed to come forward with any evidence suggesting that the alleged wet condition upon which she claimed to have fallen was present for any appreciable length of time prior to her accident (see Deveau v. CF Galleria at White Plains, LP, 18 A.D.3d 695, 796 N.Y.S.2d 119;  Gilliam v. White Castle, 8 A.D.3d 428, 780 N.Y.S.2d 18;  Tucci v. Stewart's Ice Cream Co., 296 A.D.2d 650, 746 N.Y.S.2d 60).   Accordingly, the defendants were entitled to summary judgment dismissing the complaint.