Opinion
Index No. 104184/09 Motion Sequence No. 003 Index No. 590537/09
12-26-2013
GLENN TURNER, Plaintiff, v. MANHATTAN CENTER STUDIOS, INC., MANHATTAN CENTER PRODUCTIONS, INC. and HAMMERSTEIN BALLROOM, Defendants. MANHATTAN CENTER STUDIOS, INC., d/b/a HAMMERSTEIN BALLROOM and MANHATTAN CENTER PRODUCTIONS, INC., Third-Party Plaintiffs, v. EMPIRE ENTERTAINMENT, INC., and CREATIVE EDGE CATERERS., INC., Third-Party Defendants.
DECISION/ORDER
Hon. Shlomo S. Hagler, J.S.C.:
In this slip and fall action, plaintiff Glenn Turner ("plaintiff" or "Turner") essentially moves to reargue this Court's prior order dated November 9, 2012 ("Prior Order"), which granted dismissal of plaintiff's complaint.
This Court will not reiterate all the facts set forth in the Prior Order, except to highlight some facts which were not explicitly mentioned or is relevant to this discussion. Defendant Manhattan Center Studios, Inc. ("MCS"), owns an entertainment venue at 311 West 34th Street, New York, New York ("Subject Premises"). The Hammerstein Ballroom ("Ballroom") is located within the Subject Premises and is capable of hosting large events. On November 10, 2008, the Ballroom was rented by a non-party bank for an event ("Event").
Lorraine Robinson ("Robinson") was the maintenance supervisor working for MCS on the date of the accident, November 10, 2008. Her duties included assisting clients and preparing the bathrooms in anticipation of events, including the Event on the date of the accident. (See Deposition of Robinson at p. 8-9, attached as Exhibit "F" to the moving papers). Robinson's shift began at 3pm and the bathrooms are checked at that time. (Id. at 48, 50). Robinson testified that her maintenance employees had a regular schedule and they checked the bathroom every twenty (2 0) to twenty-five (25) minutes. (Id. at 29). On the date of the accident, Robinson averred that she did not receive any complaints about the restrooms or that the hand dryers were not working. (Id. at 28, 46). Moreover, Robinson testified that she did not receive complaints about leaks from the men's restroom sinks or toilets and there was no issue with water leaking therefrom onto the stairs outside the restroom. (Id. at 48-49). Robinson neither saw nor was advised that there was water on the stairs. (Id.) Robinson stated that she arrived on the scene shortly after the incident, but that plaintiff was already gone. (Id. at 19). However, Robinson did not see water on the stairs at that time and did not enter the men's restroom to view its condition. (Id. at 49).
Motion for Reargument
To succeed on a motion for reargument, plaintiff must establish that the court "overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]).
Plaintiff argues that defendants failed to submit evidence of (1) any specific inspections or cleaning procedure and (2) there was constructive notice that water was being tracked from the bathroom to the stairs outside. As stated above, defendants submitted uncontroverted evidence of MCS's regular practice of checking the bathrooms during very short intervals of twenty (20) to twenty-five (25) minutes. Robinson testified that she neither saw nor had notice of any water on the stairs.
Significantly, plaintiff also did not observe any water on the steps when he entered the men's restroom either the first or the second time. (See Deposition of Plaintiff at p. 67, 69, 84, attached as Exhibit "E" to the moving papers). (Id. at 48-49). Even if plaintiff is alleging that water might have been tracked out of the men's restroom by others between the time he entered for the second time (and saw no water on the steps) and the time he left shortly thereafter, it also would be insufficient time for defendants to discover and remedy the condition. In addition, it is merely speculation on the part of plaintiff that the water on the steps was water that was tracked from the men's restroom. (Papoters v 40-01 N. Blvd. Corp., 11 AD3D 368 [1st Dept 2004]).
Thus, plaintiff failed to meet the above standard in moving to reargue this Court's Prior Order dated November 9, 2012.
Conclusion
Accordingly, this Court denies the motion for reargument. The foregoing constitutes the decision and order of the Court. Courtesy copies of this decision and order have been sent to counsel for the parties. Dated: December 26, 2013
New York, New York
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Hon. Shlomo S. Hagler, J.S.C.