Opinion
2003-118 KC.
Decided June 22, 2004.
Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered November 7, 2002, which denied its unopposed motion for summary judgment.
Order unanimously reversed with $10 costs and defendant's motion for summary judgment granted.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
Plaintiffs Frank Mills and Roxanne Mills commenced this action to recover damages for personal injuries Frank Mills sustained after he slipped on a liquid located on the floor of defendant's bathroom. His wife, Roxanne Mills, asserted a derivative cause of action. "In a slip and fall case, the plaintiff must demonstrate that the defendant created the dangerous condition that caused the accident or that it had actual or constructive notice of that condition and failed to remedy it within a reasonable time" ( Vlachos v. Weis Mkts., 303 AD2d 677, 678). In support of its motion for summary judgment, defendant annexed to its moving papers the transcript of the examination before trial of Frank Mills wherein he testified that he did not know what type of liquid was on the floor, where it came from or how long it was there. A manager of defendant's restaurant who was working on the date of the incident testified at her examination before trial that an employee was assigned to clean the bathrooms and that the restaurant's managers, as part of their duties, inspected the bathrooms approximately every 15 minutes to one-half hour. However, the manager could not remember when she inspected the bathrooms on the date of the accident which was more than 33 months before she was deposed.
In view of the foregoing, defendant, on its motion, which was unopposed, made a prima facie showing that it did not create the condition or have notice of its existence ( see Gordon v. American Museum of Natural History, 67 NY2d 836, 837;
Manzione v. Wal-Mart Stores, 295 AD2d 484; Monte v. T.J. Maxx, 293 AD2d 722; Strowman v. Great Atl. Pac. Tea Co., 252 AD2d 384). Accordingly, defendant's motion for summary judgment should have been granted.