MOORMAN v. HUNTINGTON HOSPITAL (1999)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 20, 1998, as granted that branch of the defendant's motion which was for partial summary judgment dismissing the first cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted that branch of the defendant's motion which was for partial summary judgment dismissing the first cause of action.   The first cause of action asserted, inter alia, that the defendant negligently maintained its premises and had knowledge of the dangerous condition which caused the plaintiff to slip, fall, and sustain injuries.   The defendant demonstrated its entitlement to judgment as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant was responsible for the clear substance on the floor of the utility room in which he slipped and fell, or whether the defendant had constructive notice of that condition (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Cobrin v. County of Monroe, 212 A.D.2d 1011, 623 N.Y.S.2d 680).   The plaintiff's assertions that only employees had access to the utility room and therefore only an employee of the defendant could have created the hazardous condition is speculative and unsupported by any evidence in the record (see, Freeman v. Rock-Hil-Uris, Inc., 30 N.Y.2d 742, 743, 333 N.Y.S.2d 170, 284 N.E.2d 155;  Gernard v. Agosti, 228 A.D.2d 994, 644 N.Y.S.2d 599;  Schwartz v. Mittelman, 220 A.D.2d 656, 632 N.Y.S.2d 667;  Melton v. E.P.S. Hair Design, 202 A.D.2d 649, 610 N.Y.S.2d 53;  Kanarskee v. Pergament Distribs., Inc., 201 A.D.2d 704, 609 N.Y.S.2d 842;  Eddy v. Tops Friendly Markets, 91 A.D.2d 1203, 459 N.Y.S.2d 196, affd. 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243).   Furthermore, there is no evidence in the record that the clear substance was visible and apparent and existed on the floor for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740;  Masotti v. Waldbaums Supermarket, 227 A.D.2d 532, 533, 642 N.Y.S.2d 950).

MEMORANDUM BY THE COURT.