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Rose v. Da Ecib USA
Citations: 259 A.D.2d 258; 686 N.Y.S.2d 19; 1999 N.Y. App. Div. LEXIS 2289
Court: Appellate Division of the Supreme Court of the State of New York; March 1, 1999; New York; State Appellate Court
The Supreme Court of New York County, in an order dated December 18, 1997, reversed the lower court's decision, which had granted the defendant's motion for summary judgment and denied the plaintiff's motion for open commissions to depose non-party witnesses. The appellate court reinstated the plaintiff's complaint and granted her motion for open commissions, remanding the case for further proceedings. The case stems from a slip and fall incident involving plaintiff Arden Rose at the defendant's restaurant, Bice, on April 5, 1991. While Rose visited the restroom, her companion, Thomas O’Brien, observed the bar area, which had a smooth wooden floor. He noted the absence of other patrons and saw a bartender and a waiter moving about, but was not focused on their actions. Upon returning, Rose slipped on a greasy spot on the floor, suffering injuries. O’Brien described the spot as wet-looking and around five to eight inches in diameter. The defendant's employees testified they had no recollection of the incident, and an assistant manager speculated that Rose slipped due to her high heels. The lower court dismissed the case, claiming the plaintiff failed to show the defendant had actual or constructive notice of the hazard, suggesting instead that Rose might have carried the grease from her table. The appellate court found this reasoning flawed, asserting that both parties presented conflicting evidence and that summary judgment was inappropriate. The court emphasized that the focus should have been on whether reasonable inferences could support the plaintiff's claim of constructive notice, rather than determining the persuasiveness of her evidence. Proof of notice is vital for recovery in slip and fall cases involving foreign substances in commercial establishments. The plaintiff raised factual questions for the jury regarding the defendant's liability for a dangerous condition. If the defendant created the hazard, actual notice is presumed. For constructive notice, the plaintiff must demonstrate that the condition was visible for a sufficient time before the incident, allowing the defendant the chance to address it. Constructive notice can also be inferred if the defendant's employees were nearby and could have noticed the hazard. In a cited case, constructive notice was found where evidence indicated a puddle existed 10 to 30 minutes before the accident. The plaintiff's assertion that the restaurant employees were the only individuals present during the 15 minutes before her fall, combined with the possibility that a waiter spilled a slippery substance during that time, supports a viable theory of negligence by the defendant. This evidence creates a factual issue justifying the denial of the defendant's summary judgment motion. Additionally, the plaintiff sought to depose three out-of-state witnesses related to damages, which the defendant did not oppose. Consequently, the court granted the plaintiff's motion for open commissions to take the depositions.