From Casetext: Smarter Legal Research

Pinto v. Little Fish Corp.

Appellate Division of the Supreme Court of New York, First Department
Jun 8, 2000
273 A.D.2d 63 (N.Y. App. Div. 2000)

Opinion

June 8, 2000.

Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about June 4, 1999, which, in an action to recover for personal injuries sustained in a slip and fall on defendant restaurant's premises, upon reargument, adhered to a prior order granting defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Charles Peknic, for plaintiffs-appellants.

William E. Marsala, for defendant-respondent.

Before: Williams, J.P., Mazzarelli, Lerner, Andrias, Friedman, JJ.


Giving plaintiff the benefit of every favorable inference, it can only be said that a spill caused her to fall. There being no evidence of how long the spill had been on the floor, plaintiff's assertion that defendant's employees had constructive notice thereof is pure speculation based on nothing more than that the premises are a restaurant where water and beverages are served (see, Morales v. Foodways, Inc., 186 A.D.2d 407; see also, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 838). Nor can plaintiff invoke the doctrine of res ipsa loquitur for the purpose of showing that the spill was created by an employee of defendant, where the spill was within 15 feet of the bar, in the pathway to the restroom and in an area accessible to customers as well as employees of the restaurant. Thus, plaintiff cannot sustain the exclusive control element of her res ipsa claim. As likely as not the spill was created by a customer with a drink in a crowded restaurant (see, Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621, 623).

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Pinto v. Little Fish Corp.

Appellate Division of the Supreme Court of New York, First Department
Jun 8, 2000
273 A.D.2d 63 (N.Y. App. Div. 2000)
Case details for

Pinto v. Little Fish Corp.

Case Details

Full title:KATHY LISA PINTO, ET AL., PLAINTIFFS-APPELLANTS, v. LITTLE FISH CORP.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 8, 2000

Citations

273 A.D.2d 63 (N.Y. App. Div. 2000)
709 N.Y.S.2d 61

Citing Cases

Shante Serv. v. Mangaroni, LLC

Moreover, the proof submitted demonstrates that at the time of the accident, at a New Year's Eve party where…

Petretta v. Nobu Rest.

Although not pleaded as such, plaintiff seeks an Inference that because the accident took place in a…