REYES v. Borrero & Sons, Inc., Defendant.

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Supreme Court, Appellate Division, First Department, New York.

Delia REYES, Plaintiff-Appellant, v. LA RONDA COCKTAIL LOUNGE, Defendant-Respondent, Borrero & Sons, Inc., Defendant.

Decided: March 30, 2006

SAXE, J.P., GONZALEZ, CATTERSON, McGUIRE, MALONE, JJ. Dinkes & Schwitzer, New York (Souren Israelyan of counsel), for appellant. Bivona & Cohen, P.C., New York (Robert G. Macchia of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered January 24, 2005, which, in an action for personal injuries sustained in a slip and fall on the premises of defendant-respondent cocktail lounge, granted defendant's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff asserts that she slipped on a wet spot near the bathroom of defendant cocktail lounge, and argues that the conflict between her testimony and that of defendant's manager as to the amount of light in the lounge raises an issue of fact as to whether inadequate lighting contributed to her slip and fall.   We reject this argument in view of plaintiff's deposition testimony which failed to indicate that as she headed toward the bathroom, she looked down at the floor at any time prior to her fall (see Christoforou v. Lown, 120 A.D.2d 387, 391, 502 N.Y.S.2d 184 [1986] ).   Not only did plaintiff fail to directly testify that she looked down but could not see the floor or any substances that were on it, but her testimony does not even permit the inference that she would not have seen the substance on the floor even if she had looked down.   The assertion that the area was “dark” or “dim” is insufficient, particularly inasmuch as cocktail lounges are expected to be dimly rather than brightly lit.