Opinion
185 CA 15-01364.
04-29-2016
Anthony DeJESUS and Tammy DeJesus, Plaintiffs–Respondents, v. CEC ENTERTAINMENT, INC., Doing Business as Chuck E. Cheese's, Defendant–Appellant.
Goldberg Segalla LLP, Garden City (Heather Zimmerman of Counsel), for Defendant–Appellant. Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for Plaintiffs–Respondents.
Goldberg Segalla LLP, Garden City (Heather Zimmerman of Counsel), for Defendant–Appellant.
Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for Plaintiffs–Respondents.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
Opinion
MEMORANDUM: Plaintiffs commenced this action seeking to recover damages for injuries allegedly sustained by plaintiff Anthony DeJesus when he slipped and fell in a parking lot while exiting a restaurant owned by defendant, CEC Entertainment, Inc., doing business as Chuck E. Cheese's. Defendant moved for summary judgment dismissing the amended complaint on the ground that it neither created nor had actual or constructive notice of the allegedly dangerous condition that caused the fall. Supreme Court determined that defendant met its initial burden on the motion by establishing that there was no evidence as to the length of time the allegedly slippery condition existed and that defendant did not have notice of the condition. The court nevertheless denied the motion on the ground that plaintiffs raised triable issues of fact with respect to actual and/or constructive notice. We reverse.
We agree with defendant that it met its initial burden of demonstrating that it had neither actual notice of the alleged slippery condition nor constructive notice of its existence for a sufficient length of time to discover and remedy it because the ice and/or slush was not “visible and apparent” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ), and we conclude that plaintiffs failed to raise a triable issue of fact in opposition (see Costanzo v. Woman's Christian Assn. of Jamestown, 92 A.D.3d 1256, 1258, 938 N.Y.S.2d 404 ; see generally Zuckerman v.
City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). We further conclude, contrary to plaintiffs' contention, that the opinions of plaintiffs' meteorologic expert are based on assumptions “that enjoy[ ] no evidentiary support in the record” (Stewart v. Canton–Potsdam Hosp. Found., Inc., 79 A.D.3d 1406, 1408, 912 N.Y.S.2d 773 ). Although plaintiffs submitted defendant's incident reports involving defendant's patrons falling in the parking lot on prior occasions, none of the reports identified a specific location in the parking lot, and they are therefore insufficient to raise an issue of fact with respect to constructive notice of an alleged recurrent condition (see Carpenter v. J. Giardino, LLC, 81 A.D.3d 1231, 1232, 917 N.Y.S.2d 439, lv. denied 17 N.Y.3d 710, 2011 WL 4388295 ; cf. Lowe v. Spada, 282 A.D.2d 815, 817, 722 N.Y.S.2d 820 ). Lastly, inasmuch as the condition was not “visible and apparent,” any lack of proof of recent inspections by defendant or the alleged failure of defendant to comply with its “Risk Management/Safety” manual with respect to inspections is irrelevant (see Quinn v. Holiday Health & Fitness Ctrs. of N.Y., Inc., 15 A.D.3d 857, 857–858, 789 N.Y.S.2d 782 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the amended complaint is dismissed.