Barca v. RM Holdings Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT 3863f A/mp AD2d Submitted – March 18, 2003 SANDRA J. FEUERSTEIN, J.P. NANCY E. SMITH HOWARD MILLER SANDRA L. TOWNES, JJ. 2001-06227 Graceann Barca, appellant, v RM Holdings Company, Inc., et al., respondents. (Index No. 26320/99) Scott Baron & Associates, P.C., Howard Beach, N.Y. (Thomas G. Panettiere and Michael A. Stea of counsel) for appellant. Steven J. Mandel, P.C., New York, N.Y., for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated May 22, 2001, which granted the defendants’ motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for personal injuries allegedly sustained when she slipped and fell while dancing on an elevated platform or stage at a dance club. The plaintiff was dancing near the edge of the platform when she allegedly slipped on a liquid substance and fell off the platform onto the dance floor four feet below. A plaintiff must show that the defendant created the condition that caused the accident or that the defendant had actual or constructive notice of the condition in order to establish a prima facie case of negligence in a slip and fall case (see Goldman v Waldbaum, 248 AD2d 436, 437). Contrary to the plaintiff’s contention, the defendants made a prima facie demonstration of entitlement to judgment as a matter of law on the basis that they did not have notice of the alleged dangerous condition (see Fasolino v Charming Stores, 77 NY2d 847, 848; Gordon v American Museum of Natural History, 67 NY2d 836, 837-838; Capra v Waldbaum’s, 272 AD2d 497, 498; Goldman v Waldbaum, supra at 437). The plaintiff’s opposition to the motion was insufficient to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the condition. Accordingly, the Supreme Court properly granted the motion and dismissed the complaint. The plaintiff’s remaining contentions are without merit. FEUERSTEIN, J.P., SMITH, H. MILLER and TOWNES, JJ., concur. ENTER: James Edward Pelzer Clerk