Pinto v. Little Fish Corp.

Appellate Division of the Supreme Court of New York

Pinto v. Little Fish Corp.

273 A.D.2d 63, 709 N.Y.S.2d 61, 2000 N.Y. App. Div. LEXIS 6331

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

DecidedJune 8, 2000

StatusPublished

Cited by7 cases

This text of 273 A.D.2d 63 (Pinto v. Little Fish Corp.) 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

Pinto v. Little Fish Corp., 273 A.D.2d 63, 709 N.Y.S.2d 61, 2000 N.Y. App. Div. LEXIS 6331 (N.Y. Ct. App. 2000).

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Opinion

Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about June 4, 1999, which, in an action to recover for personal injuries sustained in a slip and fall on defendant restaurant’s premises, upon reargument, adhered to a prior order granting defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Giving plaintiff the benefit of every favorable inference, it can only be said that a spill caused her to fall. There being no evidence of how long the spill had been on the floor, plaintiffs assertion that defendant’s employees had constructive notice thereof is pure speculation based on nothing more than that the premises are a restaurant where water and beverages are served (see, Morales v Foodways, Inc., 186 AD2d 407; see also, Gordon v American Museum of Natural History, 67 NY2d 836, 838). Nor can plaintiff invoke the doctrine of res ipsa loquitur for the purpose of showing that the spill was created by an employee of defendant, where the spill was within 15 feet of the bar, in the pathway to the restroom and in an area accessible to customers as well as employees of the restaurant. Thus, plaintiff cannot sustain the exclusive control element of her res ipsa claim. As likely as not the spill was created by a customer with a drink in a crowded restaurant (see, Ebanks v New York City Tr. Auth., 70 NY2d 621, 623). Concur — Williams, J. P., Mazzarelli, Lerner, Andrias and Friedman, JJ.

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Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about June 4, 1999, which, in an action to recover for personal injuries sustained in a slip and fall on defendant restaurant’s premises, upon reargument, adhered to a prior order granting defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Giving plaintiff the benefit of every favorable inference, it can only be said that a spill caused her to fall. There being no evidence of how long the spill had been on the floor, plaintiffs assertion that defendant’s employees had constructive notice thereof is pure speculation based on nothing more than that the premises are a restaurant where water and beverages are served (see, Morales v Foodways, Inc., 186 AD2d 407; see also, Gordon v American Museum of Natural History, 67 NY2d 836, 838). Nor can plaintiff invoke the doctrine of res ipsa loquitur for the purpose of showing that the spill was created by an employee of defendant, where the spill was within 15 feet of the bar, in the pathway to the restroom and in an area accessible to customers as well as employees of the restaurant. Thus, plaintiff cannot sustain the exclusive control element of her res ipsa claim. As likely as not the spill was created by a customer with a drink in a crowded restaurant (see, Ebanks v New York City Tr. Auth., 70 NY2d 621, 623). Concur — Williams, J. P., Mazzarelli, Lerner, Andrias and Friedman, JJ.

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Bluebook (online)

273 A.D.2d 63, 709 N.Y.S.2d 61, 2000 N.Y. App. Div. LEXIS 6331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinto-v-little-fish-corp-nyappdiv-2000.

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