Opinion
2013-11-19
Sabrina ORTIZ, Plaintiff–Respondent, v. CIOLFAR BOWL, INC., doing business as Van Nest Lanes, et al., Defendants–Appellants.
Callahan & Fusco, LLC, New York (William A. Sicheri of counsel), for appellants. Scott J. Zlotolow, Sayville (Anthony J. Bilello of counsel), for respondent.
Callahan & Fusco, LLC, New York (William A. Sicheri of counsel), for appellants. Scott J. Zlotolow, Sayville (Anthony J. Bilello of counsel), for respondent.
MAZZARELLI, J.P., SAXE, MOSKOWITZ, DeGRASSE, GISCHE, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered August 3, 2012, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff alleges that she slipped and fell in defendants' bowling alley as she started to throw the ball, because her bowling shoes became wet after she twice walked over a soaking wet carpet near the establishment's entrance. Defendants submitted evidence showing that plaintiff left the bowling alley wearing her bowling shoes, while it was raining outside, and then returned a short time later to resume bowling.
The court properly denied defendants' motion for summary judgment because the record presents issues of fact, including whether there was a wet carpet by the entrance of the bowling alley, which created a risk that was unique and resulted in a dangerous condition over and above the usual dangers inherent in bowling ( see Allwood v. CW Post Coll., 190 A.D.2d 704, 593 N.Y.S.2d 310 [2d Dept.1993] ). Although plaintiff testified she had bowled several times before, there is a question as to whether she knew her shoes were wet when she approached the lane and whether she appreciated the heightened risk of bowling with wet shoes ( see Radwaner v. USTA Natl. Tennis Ctr., 189 A.D.2d 605, 592 N.Y.S.2d 307 [1st Dept.1993]; Kremerov v. Forest View Nursing Home, Inc., 24 A.D.3d 618, 808 N.Y.S.2d 329 [2d Dept.2005] ). Plaintiff's conduct in attempting to bowl while her shoes were wet is merely one factor relevant in the assessment of her culpable conduct ( seeCPLR 1411).
Furthermore, while defendants presented evidence that they had no actual or constructive notice that the carpet was wet since it was observed to be dry shortly before and after the accident, plaintiff's conflicting testimony concerning the wet condition of the carpet presents a question of fact as to whether defendants had constructive notice of the wet carpet ( see Fundaro v. City of New York, 272 A.D.2d 516, 708 N.Y.S.2d 149 [1st Dept.2000] ).