Kimmel v. Ground Round Inc.

Appellate Division of the Supreme Court of New York

Kimmel v. Ground Round Inc.

272 A.D.2d 449, 708 N.Y.S.2d 336, 2000 N.Y. App. Div. LEXIS 5584

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 2000

StatusPublished

Cited by3 cases

This text of 272 A.D.2d 449 (Kimmel v. Ground Round Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kimmel v. Ground Round Inc., 272 A.D.2d 449, 708 N.Y.S.2d 336, 2000 N.Y. App. Div. LEXIS 5584 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Adams, J.),' dated May 25, 1999, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff was injured when she slipped and fell on a patch of ice in the parking lot of a restaurant owned by the defendant Ground Round Inc. (hereinafter Ground Round). Ground Round met its initial burden of showing that it neither created the condition complained of, nor had actual or constructive knowledge thereof. The plaintiff failed to sustain her burden of demonstrating the existence of a triable issue of fact. The evidence she presented was too speculative to establish that the defect was in existence for a sufficient length of time before the accident to permit the employees of the Ground Round to discover and remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836; Marasia v Noyl Coram, Inc., 260 AD2d 607; Davis v City of New York, 255 AD2d 356; Sellet v United Artists Theaters, 251 AD2d 488). The Supreme Court therefore erred when it denied the defendant’s motion.

The plaintiff’s contentions are without merit. O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Adams, J.),' dated May 25, 1999, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff was injured when she slipped and fell on a patch of ice in the parking lot of a restaurant owned by the defendant Ground Round Inc. (hereinafter Ground Round). Ground Round met its initial burden of showing that it neither created the condition complained of, nor had actual or constructive knowledge thereof. The plaintiff failed to sustain her burden of demonstrating the existence of a triable issue of fact. The evidence she presented was too speculative to establish that the defect was in existence for a sufficient length of time before the accident to permit the employees of the Ground Round to discover and remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836; Marasia v Noyl Coram, Inc., 260 AD2d 607; Davis v City of New York, 255 AD2d 356; Sellet v United Artists Theaters, 251 AD2d 488). The Supreme Court therefore erred when it denied the defendant’s motion.

The plaintiff’s contentions are without merit. O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.

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Bluebook (online)

272 A.D.2d 449, 708 N.Y.S.2d 336, 2000 N.Y. App. Div. LEXIS 5584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimmel-v-ground-round-inc-nyappdiv-2000.

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