Opinion
No. CA 08-01398.
February 11, 2009.
Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered August 22, 2007 in a personal injury action. The order and judgment granted the motions of defendant and third-party defendant for summary judgment and dismissed the complaint.
FINUCANE AND HARTZELL, LLP, PITTSFORD (LEO G. FINUCANE OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
LAW OFFICE OF LAURIE G. OGDEN, ROCHESTER (LOUISE A. BOILLAT OF COUNSEL), FOR DEFENDANT-RESPONDENT.
FIX SPINDELMAN BROVITZ GOLDMAN, P.C., FAIRPORT (ROY Z. ROTENBERG OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.
Present: Smith, J.P., Centra, Fahey Green and Pine, JJ.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Robin E. Bellassai (plaintiff), an employee of third-party defendant, when she slipped and fell on the wet floor of a dining hall on defendant's campus. We conclude that Supreme Court properly granted the motion of defendant, joined in by third-party defendant, for summary judgment dismissing the complaint. Those parties met their "`burden of establishing that [defendant] did not create the dangerous condition that caused plaintiff to fall and did not have actual or constructive notice thereof'" ( Wesolek v Jumping Cow Enters., Inc., 51 AD3d 1376, 1377; see generally Fasolino v Charming Stores, 77 NY2d 847; Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). "Plaintiffs' speculation with respect to the source of the [wetness] and the length of time it was on the floor is insufficient to raise a triable issue of fact" to defeat the motions ( Anthony v Wegmans Food Mkts., Inc., 11 AD3d 953, 954). Further, defendant's alleged "`general awareness' that a dangerous condition may be present [on the floor in the area of plaintiffs fall] is legally insufficient to constitute notice of the particular condition that caused plaintiffs fall" ( Piacquadio v Recine Realty Corp., 84 NY2d 967, 969; see generally Gallais-Pradal v YWCA of Brooklyn, 33 AD3d 660; Palermo v Roman Catholic Diocese of Brooklyn, N.Y., 20 AD3d 516). For the same reason, there is no merit to plaintiffs' further contention that a prior lawsuit concerning a slip-and-fall allegedly caused by wetness in a different portion of the dining hall several years before plaintiffs accident was sufficient to provide notice of the condition at issue in this case.