Silvera v. Footprints Cafe S. Inc.

2024 NY Slip Op 34535(U)

• Court: New York Supreme Court, Kings County
• Decided: December 31, 2024
• Docket: Index No. 512266/2021
• Status: Unpublished

Opinion

Silvera v Footprints Cafe S. Inc. 2024 NY Slip Op 34535(U) December 31, 2024 Supreme Court, Kings County Docket Number: Index No. 512266/2021 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 12/31/2024 03:49 PM INDEX NO. 512266/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 12/31/2024

.At IA Part 75 of the• Supreme Court ofthe State of New York, held in and for the County of Kings, at the Courthouse located at 360 Adams Street, Brooklyn, New York, on the31 st day of December 2024. · PRESENT:

HON. ANNE J. SWERN Justice. -- .--- .------. --------- .. ----- ·-----· .------- ..------.. :--- .- ·. ------- ·X SONYA SILVERA DECISION AND ORDER

Plaintiffs, .,.against- Index #512266/2021

FOOTPRINTS.CAFE SOUTH INC. Motion Seq.: 003 Defendants -------------------------------------- ..--- .------. --- .--------- .- .- .--X

Recitation ofthepapers as requiredbyCPLR2219(a)i Papers Number Notices ofMotion, Affirmation, Statement of Material Facts and Exhibits (NYSCEF37-47) .............................. , ................. l,2

Affirtnatiort in Opposition (NYSCEF48); ........ ,..................................................... .3

Affirmations in Reply (NYSCEF 50) ... ;.............................................. ,.... ,............ ..4

Upon the foregoing papers and after oral argument, the decision and order of the Court

is as follows:

In this personaUnjury action, defendant moved for summary judgment pursuant to

CPLR § 3212, dismissing the complaint.

Plaintiff alleges that on August 20, 2020, sne slipped and. fell ona grea~y

substance bnthe fl9or ofthe area where· she was waiting for her table .at defendant's.

restaurant. Plaintiff testified that the restaurant's manager told her thaf he had preyioµsly ·

.instnicted the staff to illop the floor• but that the: mop had grease. Therefore, the manager

Silvera"· Footprints.Cafe. s12266h~~1 . Pagelai4

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admitted to either creating the condition orhaving actual notice of its existenc~ before her

fall.

The manager denied making any such statement and testified that the area had

been mopped the night before and dried. Additionally; he passed throughthe area to

escortpatron s to their tables every 15 minutes and did not observe spiUage or greasy

substances. Defendant argues that the admissions alleged by plaintiff are inadmissible

hearsay because the manager was not authorized to speak for the defendant. Therefore,

plaintiff cannotestab lish actual or constructive notice of the alleged condition or that it

was caused by defendant, and Summary judgment should be granted. In support of this

argumertt, defendant cites numerous decisions prior to the 2021 Atnendment to CPLR

§ 4549.

CPLR § 4549 states that ,iA statement offered against an opposing party shall not

be excluded from evidence as hearsay ifmade by a person whom the opposing party

authorized to make a state_meriton the subject or by the opposing patty's agent or

employee on a matter within the scope ofthat relationship and during the existence of

that relationship;' (emphasis added}

When deciding a summary judgment motion, the Court's role is solely to identify

the existence of triable issues, notto determine the merits of any such issues (Vega v.

Restani ConstructionCorp., 18 NY3d 499, 505 [2012]) or the credibility of the movant's

version of events (see Xiang Fu He v. Troon Management, Inc., 34 NY3d 167, 175

[2019] [internal citations omitted]). The Court views the evidence in the Hghtmost

favorable to the nonmoving party, affording:the rtonmovingp arty the benefit of all Silvera v. Footprints Cafe 512266/2021 Page2af.4

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reasonable inferences that can be drawn from the evidence (see Negri v. Shop& Stop,

Inc., 65 NY2d 625,626 [1985]). The motion should be denied where the facts are in

dispute; where different inferences may be drawn from the evidence, or where the

credibility of the witnesses is in question (see Cameron v. City ofLongBeach,.297 AD2d

773,774 [2dDept. 2002]).

Here, the Court may properly consider the foregoing statements by the restaurant's

manager "when evaluating defendant's motion for summary" (GLDoe 5 v. Fleming, 229

AD3d 1076, 1078-1079 [4th Dept.2024]; CPLR § 4549} Plaintiffhas demonstrated that

the conflicting deposition testimony submitted in s.upport of defendant's motion raises a

triable issue of fact that defendant;s employee, within the-scope and during the existence

of his relationship as the manager of the restaurant, admitted to causing and creating the

condition or had actual and constructive notice of its existence to imp11te notice to

defendant (GL Doe 5v. Fleming, 229 AD3d 1081-1082). The jury must determine the . .

parties' credibility and whether (1) the statements were made by the manager and are

sufficientto impute notice to defendant and (2) the condition existed for a sufficient

length oftime that the.manager should have discovered it while escorting patrons to·their

tables (See Cameron v. City ofLong Beach; 297 AD2d 774). Based on the foregoing;

defendant failed to meet its burden ofproofand establish aprimafacie entitlement to

summary judgmertt(GL Doe Sv. Fleming,229 AD3d 1081~1082).

Accordingly; it is hereby

Sfhiera v. Foo~prints Cafe 512266/2021 Poge3qf4

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ORDERED that the defendant's motion for a summary judgment is denied in its

entirety.

The foregoing constitutes the decision and order of this Court.

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