FUNT v. Odessa Restaurant, respondent. (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated March 5, 1998, which granted the motion of the defendant Odessa Restaurant for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff Esta Funt slipped and fell while she was dancing on a dance floor in the defendant Odessa Restaurant.   The plaintiffs contend that they need not prove notice in this case because Odessa Restaurant created the alleged hazardous condition.   We disagree.

The evidence submitted by Odessa Restaurant made out a prima facie case that it did not create the alleged hazardous condition which caused Esta Funt to slip and fall.   In opposition to the motion, the plaintiffs relied on testimony indicating only that employees of Odessa Restaurant, including members of its waiting staff, carried beverages on to the dance floor on the night in question.   Because it would be sheer speculation to conclude that the liquid substance which caused Esta Funt to slip and fall was spillage from such a beverage, the plaintiffs' evidence submitted in opposition to the motion failed to raise a triable issue of fact (see, Schafrick v. Shinnecock Bait & Tackle, 204 A.D.2d 706, 612 N.Y.S.2d 646;  Bras v Atlas Constr. Corp., 166 A.D.2d 401, 560 N.Y.S.2d 467).   Accordingly, Odessa Restaurant was entitled to summary judgment.

MEMORANDUM BY THE COURT.