DANE v. TACO BELL CORP

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

Ronald DANE, et al., Appellants, v. TACO BELL CORP., etc., Respondent.

Decided: August 05, 2002

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY and HOWARD MILLER, JJ. Mahoney & McLoone, Mineola, N.Y. (John J. McLoone, Jr., of counsel), for appellants. Gordon & Silber, P.C., New York, N.Y. (Andrew B. Kaufman of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Mahon, J.), entered June 11, 2001, which, upon an order of the same court, dated March 5, 2001, granting the defendant's motion for summary judgment dismissing the complaint, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

The injured plaintiff allegedly sustained injuries when he slipped and fell on water and ice in the defendant's restaurant.   On its motion for summary judgment dismissing the complaint, the defendant made a prima facie showing that it neither created the alleged slippery condition nor had actual or constructive notice of it as a matter of law (see Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494;  Bradish v. Tank Tech Corp., 216 A.D.2d 505, 628 N.Y.S.2d 807;  Gaeta v. City of New York, 213 A.D.2d 509, 624 N.Y.S.2d 47).

 The burden thus shifted to the plaintiffs to come forward with evidence to show the existence of a triable issue of fact.   Contrary to the plaintiffs' contentions, there was no evidence to support their assertion that the water and ice which allegedly caused the injured plaintiff to fall constituted a “recurrent dangerous condition,” and therefore, that the defendant should be charged with constructive notice of each specific reoccurrence of the condition (Weisenthal v. Pickman, 153 A.D.2d 849, 545 N.Y.S.2d 369).   Moreover, the plaintiffs failed to establish that the defective condition was visible and apparent, and existed for a sufficient period of time before the accident for the defendant to discover and correct it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Rosario v. New York City Tr. Auth., 215 A.D.2d 364, 626 N.Y.S.2d 242).   The plaintiff presented no evidence concerning the length of time the water and ice had been on the floor before his fall or whether the defendant had received prior complaints concerning the condition.   Therefore, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint (see Kerson v. Waldbaums Supermarket, 284 A.D.2d 376, 725 N.Y.S.2d 676;  Sanchez v. Delgado Travel Agency, 279 A.D.2d 623, 719 N.Y.S.2d 887;  Dwoskin v. Burger King Corp., supra).

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