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Samuels v. Chap A Nosh of Cedarhurst

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


May 19, 2009

MIRIAM SAMUELS, ETC., ET AL., APPELLANTS,
v.
CHAP A NOSH OF CEDARHURST, INC., ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, J.), dated January 10, 2008, which granted the defendants' motion for summary judgment dismissing the complaint. Justice Dickerson has been substituted for former Associate Justice Ritter (see 22 NYCRR 670.1[c]).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., HOWARD MILLER, RUTH C. BALKIN and THOMAS A. DICKERSON, JJ.

(Index No. 3379/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff Miriam Samuels allegedly was injured when she slipped and fell on what she described as a greasy substance on the floor outside the manager's office in a store operated by the defendant Chap A Nosh of Cedarhurst, Inc. (hereinafter Chap A Nosh). In order to prevail on their motion for summary judgment dismissing the complaint, the defendants were required to demonstrate that they neither created the allegedly dangerous condition nor had actual or constructive notice of it (see Cunningham v Bay Shore Middle School, 55 AD3d 778; Pomerantz v Culinary Inst. of Am., 2 AD3d 821; Luciani v Waldbaum, Inc., 304 AD2d 537). As conceded by the plaintiffs, the defendants made that showing. In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' contention that the condition may have been created by a Chap A Nosh chef who might have tracked grease from the kitchen is purely speculative (see Pomerantz v Culinary Inst. of Am., 2 AD3d at 821-822; Luciani v Waldbaum, Inc., 304 AD2d at 537).

SPOLZINO, J.P., MILLER, BALKIN and DICKERSON, JJ., concur.

20090519

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