PAPOTERS v. 40 01 NORTHERN BLVD CORP

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

Rafael PAPOTERS, et al., Plaintiffs-Appellants, v. 40-01 NORTHERN BLVD. CORP., etc., et al., Defendants-Respondents.

Decided: October 21, 2004

TOM, J.P., SULLIVAN, WILLIAMS, LERNER, SWEENY, JJ. Brian M. Limmer, Bellmore, for appellants. Cullen and Dykman Bleakley Platt LLP, Brooklyn (Nicholas L. Magali of counsel), for respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered June 13, 2003, which, in an action arising out of a slip and fall on a stairway in defendant-respondent's restaurant, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint as against the restaurant, unanimously affirmed, without costs.

 Plaintiff asserts that the first time he went down the stairs to go to the bathroom, he did not notice anything on the steps, but he did see liquid nearby on the floor landing at the top of the stairs, and reported it to a restaurant employee.   When plaintiff went down the stairs a second time some 45 to 60 minutes later, he did not look at the floor to see if it was still wet, but he did look down at the first step and saw nothing.   The restaurant's witnesses confirmed that there was no wetness on the top steps immediately after the accident.   Thus, as the motion court found, there is simply no evidence of a hazardous condition on the stairs that could have caused plaintiff's fall.   Plaintiff's opposing affidavit, which states that the top step was wet, is unavailing since it contradicts his prior deposition testimony, and is thus inherently suspect (see Schiavone v. Brinewood Rod & Gun Club, 283 A.D.2d 234, 235-236, 726 N.Y.S.2d 615 [2001] ).   But even if the step were wet, such condition, without more, would be insufficient to impose liability;  in addition, there must be evidence that the restaurant either created the wetness or had actual or constructive notice of it (see Segretti v. Shorenstein Co., 256 A.D.2d 234, 234-235, 682 N.Y.S.2d 176 [1998];  Berger v. ISK Manhattan, 10 A.D.3d 510, 781 N.Y.S.2d 648 [2004] ).   In this regard, plaintiff would have the factfinder infer that the liquid he had observed on floor an hour earlier had found its way to the nearby stairs.   The motion court properly rejected this argument as speculative inasmuch as plaintiff cannot say that the liquid he had observed on the floor the first time he used the stairs was still there the second time he used the stairs.   Nor does the record contain any expert analysis of the slope of the floor at the top of the stairs and its effect on any liquid that may have been there.   We have considered plaintiff's other theories of causation and also find them speculative.