Friedman Sanchez, LLP (Arnold E. DiJoseph III, New York, NY,
of counsel), for appellants.
Kaufman Dolowich & Voluck, LLP, New York, NY (Kenneth B.
Danielsen of counsel), for respondent.
C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court, Kings
County (Baily-Schiffman, J.), dated July 16, 2015, which
granted the defendant's motion for summary judgment
dismissing the complaint.
that the order is affirmed, with costs.
plaintiff David Barron (hereinafter the injured plaintiff)
allegedly slipped and fell as he entered a shower stall
located in the men's locker room of a gym owned and
operated by the defendant. The injured plaintiff, and his
wife suing derivatively, commenced this action, inter alia,
to recover damages for personal injuries. After issue was
joined, the defendant moved for summary judgment dismissing
the complaint. The Supreme Court granted the motion, and the
owner of property has a duty to maintain his or her property
"in a reasonably safe condition in view of all the
circumstances, including the likelihood of injury to others,
the seriousness of the injury, and the burden of avoiding the
risk" (Basso v Miller, 40 N.Y.2d 233, 241
[internal quotation marks omitted]). A defendant who moves
for summary judgment in a slip-and-fall or a trip-and-fall
case has the initial burden of making a prima facie showing
that it did not create the hazardous condition which
allegedly caused the fall, and did not have actual or
constructive notice of that condition for a sufficient length
of time to discover and remedy it (see Giantomaso v T.
Weiss Realty Corp., 142 A.D.3d 950; Levine v G.F.
Holding, Inc., 139 A.D.3d 910; Mehta v Stop &
Shop Supermarket Co., LLC, 129 A.D.3d 1037; Campbell
v New York City Tr. Auth., 109 A.D.3d 455, 456;
Levine v Amverserve Assn., Inc., 92 A.D.3d 728, 729;
see also Monastiriotis v Monastiriotis, 141 A.D.3d
510). "[W]hether a dangerous or defective condition
exists on the property of another so as to create liability
depends on the peculiar facts and circumstances of each case
and is generally a question of fact for the jury"
(Trincere v County of Suffolk, 90 N.Y.2d 976, 977
[internal quotation marks omitted]; see Nagin v K.E.M.
Enters., Inc., 111 A.D.3d 901).
defendant established its prima facie entitlement to judgment
as a matter of law. In support of its motion, the defendant
demonstrated, through the injured plaintiff's deposition
testimony wherein he indicated that he slipped when he placed
his foot in the wet shower basin, that the injured plaintiff
slipped on water that he knew was present in the shower stall
before entering. He was unable to identify any other
condition as the cause for his fall. Here, the mere presence
of water in the shower stall basin cannot impart liability to
the defendant for the injured plaintiff's fall,
particularly since the water was necessarily incidental to
the use of the shower stall (see Noboa-Jaquez v Town
Sports Intl., LLC, 138 A.D.3d 493; Dove v Manhattan
Plaza Health Club, 113 A.D.3d 455; Jackson v State
of N.Y., 51 A.D.3d 1251; Seaman v State of New
York, 45 A.D.3d 1126; Conroy v Saratoga Springs
Auth., 259 A.D. 365, affd 284 NY 723). The
evidence submitted in support of the defendant's motion
demonstrated that the defendant did not create or have actual
or constructive notice of any dangerous or defective
condition in the subject shower stall.
opposition, the plaintiffs failed to raise a triable issue of
fact. The plaintiffs, in opposing the defendant's motion,
principally relied upon the affidavits of the injured
plaintiff and their expert engineer. In his affidavit, the
injured plaintiff, for the first time, identified the cause
of his fall as soap or soap residue on the floor of the
shower stall. This statement presented what appears to be a
feigned issue of fact designed to avoid the consequences of
his earlier deposition testimony (see Bryant v Loft
Bookstore Café, LLC, 138 A.D.3d 664; Viviano
v KeyCorp, 128 A.D.3d 811, 812; Blocker v
Filene's Basement #51-00540, 126 A.D.3d 744, 746),
and was therefore insufficient to defeat the motion. The
affidavit of the plaintiffs' engineer ...