SPAGNOLA v. TRUMP TAJ MAHAL INC

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

Ida SPAGNOLA, et al., appellants, v. TRUMP TAJ MAHAL, INC., respondent.

Decided: May 24, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY, JJ. Louis Grandelli, Brooklyn, N.Y., for appellants. Gallagher Gosseen Faller Kaplan & Crowley, Graden City, N.Y. (Alan D. Kaplan and Joseph A. Latasso of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Cusick, J.), dated April 14, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

At approximately 10:30 A.M. on July 18, 1994, the plaintiff Ida Spagnola slipped on what she believed to be an accumulation of water on a tile floor at the Sultan's Feast Restaurant operated by the defendant in Atlantic City, New Jersey.   As the Supreme Court found, the defendant made an initial showing of entitlement to summary judgment by submitting evidence which established that no “wet mopping” had been done between the hours of 6:30 A.M. and 10:30 A.M. and that “wet mopping” was instead routinely performed during the “graveyard shift”, prior to the opening of the restaurant at 6:30 A.M.   While the plaintiff submitted evidence which tended to establish that an employee of the defendant had been seen in the area using a mop shortly before the accident, there is inadequate evidence to associate that mopping, which may have been “dry mopping”, with the accumulation of water upon which the plaintiff later slipped.   We therefore agree with the Supreme Court that the plaintiff failed to demonstrate an issue of fact as to whether the defendant created, or had actual or constructive notice of, the condition which caused the accident (see generally, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774).

MEMORANDUM BY THE COURT.

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