Xenakis v. Waldbaum

5 Citing cases

  1. A R Laundry Corp. v. A.T.E.Z. LLC

    268 A.D.2d 397 (N.Y. App. Div. 2000)   Cited 1 times

    The Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on its second and third causes of action. The plaintiff made out a prima facie case for summary judgment and the defendant failed to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact which requires a trial of the action ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Richter v. Herman, 240 A.D.2d 556; Fresse v. City of New York, 238 A.D.2d 374; Xenakis v. Waldbaum, Inc., 237 A.D.2d 433). The defendant's remaining contentions are without merit.

  2. Rivest v. Pizza Hut of America, Inc.

    264 A.D.2d 388 (N.Y. App. Div. 1999)   Cited 6 times

    In opposition, the plaintiffs were required to demonstrate the existence of an issue of fact that the defendant either created the puddle of water on the floor which allegedly caused the accident or had actual or constructive notice of it ( Bradish v. Tank Tech Corp., 216 A.D.2d 505), and they failed to do so. Contrary to the plaintiffs' contentions, the record contains only speculation that the defendant either created the puddle of water ( see, Xenakis v. Waldbaum, Inc., 237 A.D.2d 433) or had actual or constructive notice of the condition ( see, Kaufman v. Man-Dell Food Stores, 203 A.D.2d 532; Dwoskin v. Burger King Corp., supra; Lowe v. Olympia York Cos. [USA], 238 A.D.2d 317). The Supreme Court properly found that the alleged statement of the defendant's manager after the accident failed to raise a triable issue. There was insufficient evidence that the manager had the authority to make the alleged statement or to support the argument that the statement could properly be used to establish notice ( see, Williams v. Waldbaums Supermarkets, 236 A.D.2d 605).

  3. RIVEST v. PIZZA HUT OF AMERICA, INC. [2d Dept 1999

    (N.Y. App. Div. Aug. 2, 1999)

    In opposition, the plaintiffs were required to demonstrate the existence of an issue of fact that the defendant either created the puddle of water on the floor which allegedly caused the accident or had actual or constructive notice of it ( Bradish v. Tank Tech Corp., 216 A.D.2d 505), and they failed to do so. Contrary to the plaintiffs' contentions, the record contains only speculation that the defendant either created the puddle of water ( see, Xenakis v. Waldbaum, Inc., 237 A.D.2d 433) or had actual or constructive notice of the condition ( see, Kaufman v. Man-Dell Food Stores, 203 A.D.2d 532; Dwoskin v. Burger King Corp., supra; Lowe v. Olympia York Cos. [USA], 238 A.D.2d 317). The Supreme Court properly found that the alleged statement of the defendant's manager after the accident failed to raise a triable issue. There was insufficient evidence that the manager had the authority to make the alleged statement or to support the argument that the statement could properly be used to establish notice ( see, Williams v. Waldbaums Supermarkets, 236 A.D.2d 605).

  4. Dahroug v. Trifon

    242 A.D.2d 520 (N.Y. App. Div. 1997)   Cited 2 times

    Waldbaum demonstrated prima facie its entitlement to judgment as a matter of law by presenting evidence that it neither created the dangerous condition nor had actual or constructive notice thereof ( see generally, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967; Kraemer v. K-Mart Corp., 226 A.D.2d 590; Rotunno v. Pathmark, 220 A.D.2d 570). The plaintiff's submissions, including the "newly proffered" material he placed before the court on renewal, largely consisted of surmise and conjecture and failed to constitute evidence in admissible form sufficient to rebut Waldbaum's prima facie showing ( see, e.g., Xenakis v. Waldbaum, Inc., 237 A.D.2d 433; Williams v. Waldbaums Supermarkets, 236 A.D.2d 605; Gottlieb v. Waldbaums Supermarkets, 226 A.D.2d 344). Moreover, we discern no improvident exercise of discretion in the denial of the plaintiff's application pursuant to CPLR 3025 (b) to amend his bill of particulars to assert a new theory of recovery based on a purported design and/or construction defect.

  5. Ayala v. Hillstone Rest. Grp., Inc.

    2012 N.Y. Slip Op. 32186 (N.Y. Sup. Ct. 2012)

    Additionally, the plaintiff did not fill out an accident report, nor did she speak to a manager at the restaurant regarding her fall. Contrary to the plaintiff's contentions, the record contains only speculation that the defendant either created the puddle of liquid (see, Xenakis v. Waldbaum, Inc., 237 A.D.2d 433, 655 N.Y.S.2d 960) or had actual or constructive notice of the condition (see, Kaufman v. Man Dell Food Stores, 203 A.D.2d 532, 611 N.Y.S.2d 230; Lowe v. Olympia & York Cos. [USA], 238 A.D.2d 317, 656 N.Y.S.2d 930). Even if this Court were to assume that the liquid was visible, despite plaintiff's inability to recall seeing water, there is no evidence from which a jury could reasonably conclude that such condition existed for a sufficient period of time to allow defendants to have discovered and remedied it (O'Rourke v Williamson, Picket, Gross, 260 AD2d 260, 261). Plaintiffs testimony at her deposition that the water she fell on had "footprints" does not provide sufficient evidence that the water existed for a requisite period of time to establish constructive notice. On such a state of the record, it was incumbent upon plaintiff to show that defendants had either actual or constructive notice of the alleged dangerous condition.