Rizos v. Galini Seafood Restaurant — 89 A.D.3d 1004

Majority

p. 1004

Konstanto Rizos, Respondent, v Galini Seafood Restaurant et al., Appellants.

[933 NYS2d 703]

The plaintiff, who was then 85 years of age, allegedly slipped and fell at the defendants’ restaurant while walking down a staircase consisting of three steps. The defendants established their prima facie entitlement to judgment as a matter of law by submitting the plaintiff’s deposition testimony, in which she was unable to identify the cause of her accident without engaging in speculation (see Dalinedesroches v Lazard, 70 AD3d 626 [2010] ; Bolde v Borgata Hotel Casino & Spa, 70 AD3d 617 [2010]; Morgan v Windham Realty, LLC, 68 AD3d 828 , 829 [2009]; Reiff v Beechwood Browns Rd. Bldg. Corp., 54 AD3d 1015 [2008]; Teplitskaya v 3096 Owners Corp., 289 AD2d 477 , 478 [2001]). The defendants also established that they did not create a dangerous or defective condition, and did not have actual or constructive notice of the existence of any such condition for a sufficient length of time to discover and remedy it, as required in an action alleging premises liability (see Gordon v American Museum of Natural History, 67 NY2d 836 , 837 [1986]; Shindler v Warf, 66 AD3d 762 , 763 [2009]; Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798 , 799 [2005]; Gloria v MGM Emerald Enters., 298 AD2d 355 [2002]).

The admissible evidence which the plaintiff submitted in opposition to the defendants’ motion failed to raise a triable issue

p. 1005

of fact as to the cause of the accident (see Dalinedesroches v Lazard, 70 AD3d at 626 ; Morgan v Windham Realty, LLC, 68 AD3d at 829 ; Teplitskaya v 3096 Owners Corp., 289 AD2d at 478 ). The affidavit of a nonparty witness relating to the defendants’ notice of the alleged dangerous condition could not be considered in determining the motion, as the witness was not properly disclosed as a notice witness (see Muniz v New York City Hous. Auth., 38 AD3d 628 [2007]; Williams v ATA Hous. Corp., 19 AD3d 406 , 407 [2005]).

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint. Angiolillo, J.E, Balkin, Chambers and Cohen, JJ., concur.

Cases cited

Bolde v. Borgata Hotel Casino & Spa 70 AD3d 617 N.Y. App. Div. 2010-02-02 p. 1004
Morgan v. Windham Realty, LLC 68 AD3d 828 N.Y. App. Div. 2009-12-08 at 829 p. 1004
Reiff v. Beechwood Browns Road Building Corp. 54 AD3d 1015 N.Y. App. Div. 2008-09-30 p. 1004
Teplitskaya v. 3096 Owners Corp. 289 AD2d 477 N.Y. App. Div. 2001-12-24 at 478 p. 1004
Gordon v. American Museum of Natural History 67 NY2d 836 N.Y. 1986-03-25 at 837 p. 1004
Shindler v. Warf 66 AD3d 762 N.Y. App. Div. 2009-10-13 at 763 p. 1004
Crawford v. AMF Bowling Centers, Inc. 18 AD3d 798 N.Y. App. Div. 2005-05-31 at 799 p. 1004
Gloria v. MGM Emerald Enterprises, Inc. 298 AD2d 355 N.Y. App. Div. 2002-10-07 p. 1004
Williams v. ATA Housing Corp. 19 AD3d 406 N.Y. App. Div. 2005-06-06 at 407 p. 1005