DWOSKIN v. BURGER KING CORPORATION (1998)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Phelan, J.), dated June 23, 1997, which denied its motion for summary judgment dismissing the complaint.

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

The plaintiff commenced the instant action to recover damages for personal injuries he allegedly sustained when he slipped and fell on a puddle of water and melting ice located at least 3 to 4 feet away from the self-service beverage counter in the defendant's restaurant.   The defendant moved for summary judgment on the ground that it neither created the allegedly dangerous condition, nor had actual or constructive notice of the condition.   In support of its motion, it submitted evidence that 10 minutes before the accident, an employee inspected the area where the plaintiff fell and did not see the puddle of water and ice on which the plaintiff later slipped.

The plaintiff asserted, inter alia, that the puddle of water and melting ice near the self-service beverage counter constituted a recurrent dangerous condition and therefore, that the defendant had constructive notice of the dangerous condition.

 On a motion for summary judgment to dismiss the complaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, Gordon v. Waldbaum, Inc., 231 A.D.2d 673, 674, 647 N.Y.S.2d 996;  Colt v. Great Atl. & Pac. Tea Co., 209 A.D.2d 294, 295, 618 N.Y.S.2d 721;  Padula v. Big V Supermarkets, 173 A.D.2d 1094, 570 N.Y.S.2d 850).   In opposition, in order “[t]o prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition” (Bradish v. Tank Tech Corp., 216 A.D.2d 505, 506, 628 N.Y.S.2d 807;  Gaeta v. City of New York, 213 A.D.2d 509, 624 N.Y.S.2d 47).   In the instant case, the defendant sufficiently established the absence of notice as a matter of law (see, McClarren v. Price Chopper Supermarkets, 226 A.D.2d 982, 640 N.Y.S.2d 702;  Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698, 633 N.Y.S.2d 413).   Since the plaintiff submitted no proof, only speculation, that the puddle of water and ice on the floor was in fact caused by the ice machine at the beverage counter, the defendant is entitled to summary judgment dismissing the complaint.

MEMORANDUM BY THE COURT.