Opinion
2014-01-14
Lilith DOVE, Plaintiff–Respondent, v. MANHATTAN PLAZA HEALTH CLUB, et al., Defendants–Appellants.
Goldman & Grossman, New York (Eleanor R. Goldman of counsel), for appellants. Hogan & Cassell, LLP, Jericho (Michael D. Cassell of counsel), for respondent.
Goldman & Grossman, New York (Eleanor R. Goldman of counsel), for appellants. Hogan & Cassell, LLP, Jericho (Michael D. Cassell of counsel), for respondent.
SWEENY, J.P., RENWICK, ANDRIAS, FREEDMAN, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered April 17, 2013, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendants established entitlement to judgment as a matter of law in this action where plaintiff slipped and fell on water located on the tile floor around the indoor pool of defendants' health club. Defendants showed that the presence of such water was “necessarily incidental” to the use of the pool ( Conroy v. Saratoga Springs Auth. 259 App.Div. 365, 367, 19 N.Y.S.2d 538 [3d Dept.1940], affd.284 N.Y. 723, 31 N.E.2d 197 [1940]; Jackson v. State of New York, 51 A.D.3d 1251, 857 N.Y.S.2d 368 [3d Dept.2008] ).
In opposition, plaintiff failed to raise a triable issue of fact. The mere presence of water does not raise such an issue and plaintiff has not asserted a violation of a code, rule, regulation or industry standard. Moreover, there is no evidence as to how long the water existed on the floor, nor was the amount of water above and beyond what one might ordinarily expect to encounter around a pool ( see Jackson, 51 A.D.3d at 1253, 857 N.Y.S.2d 368). That water on the floor was a recurring situation is simply consistent with being “necessarily incidental” to the use of the pool.