MEMORANDUM DECISION

Defendant The Lobster Place Inc. (Adefendant@) moves for summary judgment dismissing the personal injury action of Renato Migliorini (Aplaintiff@) and his wife, Pauline Migliorini, (collectively, Aplaintiffs@) against defendant, on the grounds that the wet and soapy condition of defendant=s floor, which allegedly caused plaintiff=s injury, was open and obvious to plaintiff, and that plaintiff assumed the risk of walking on defendant=s floor.

Plaintiffs oppose defendant=s motion on the grounds that there are material, triable issues of fact as to whether the condition of defendant=s floor was open and obvious to plaintiff, and whether the dangerous condition of defendant=s premises was a contributing cause of plaintiff=s injuries. Plaintiffs also cross move for leave of the Court to amend their Verified Bill of Particulars to include defendant=s violations of the New York City Administrative Code and to expound on the condition of defendant=s sloped loading dock, which, they claim, contributed to plaintiff=s fall.

Plaintiffs' Deposition Testimony

Plaintiff=s accident happened at about 8:30 a.m. on July 21, 2006 at The Lobster Place (pp. 9-10). For the past 15 years, plaintiff has frequented The Lobster Place (the Asubject premises@) at least four times a week to buy fish for his restaurant (pp. 13-14). On the morning of the accident, plaintiff was visiting the subject premises to buy a case of lobster meat. The subject premises has two separate entrances: a retail entrance and a wholesale entrance (p. 13). The wholesale entrance has no door and two stone steps leading up to a sloped platform or loading dock (p. 14). On July 21, plaintiff used the wholesale entrance to enter and exit the subject premises, as was his usual route (p. 37). As plaintiff was leaving the subject premises on July 21, holding a shopping bag containing his purchase (p. 19), his right foot slipped on the platform leading to the two stone steps at the wholesale entrance (p. 27). After his foot slipped, he Atried to grab someplace, nothing to grab. I fell down, and I dropped the case, the lobster@ (p. [*2]39). Plaintiff broke his right wrist as a result of the fall.

When plaintiff was asked whether he knew what caused his right foot to slip, plaintiff said he saw soap and water (p. 30). Plaintiff also was asked: ADid you see any soap before you fell?@ Plaintiff replied, ANo@ (p. 30). Plaintiff later testified that when he entered the subject premises he was aware that an employee was washing the floors, but that he did not see soap and water on the platform where he slipped and fell until after he fell (p. 34). Plaintiff was asked, AWas there any questions that I=d previously asked you that you did not understand?@ Plaintiff said: ANo. You asked me about if I see the soap on the floor, right? And I say no, but I saw the guy with the bucket, with the boots clean the floor@ (p. 34). When asked what the employee with the bucket was doing, plaintiff replied: AI guess wash the floor. . . He have water. He throw the water on the floor@ (p. 37). Plaintiff said he did not see the employee throw the water on the loading dock where he slipped and fell (p. 38).

Plaintiff also testified that he saw the employee throw water out of the wholesale entranceway onto the sidewalk (pp. 64-65). But plaintiff said he did not notice any water on the steps to the entranceway (p. 65). When asked whether on previous occasions plaintiff had ever seen workers from the subject premises throw water out of the wholesale entrance where plaintiff entered, plaintiff said Amany time[s]@ (p. 65).

Defendant's Contentions

Defendant contends it is entitled to summary judgment, because the wet and soapy condition of the floor of the subject premises was open and obvious to plaintiff, and plaintiff assumed the risk of walking on that floor. Defendant points to the plaintiff=s deposition testimony that plaintiff saw an employee clean the floor and throw the water out of the wholesale entrance on the day of the accident, and that plaintiff had seen employees clean the floor and throw the water out of the wholesale entrance many times before (pp. 64-65).

Defendant concedes that plaintiff testified that before he fell, plaintiff did not notice any soap on the floor in the area where he fell; plaintiff testified that he noticed the soap only after he fell. However, defendant argues in its response to plaintiffs' cross-motion, that Awhere [the soap] was able to be seen after the accident, it cannot be disputed it was visible before the accident@ (p. 3). Defendant points out that plaintiff never explained why he did not see the soap and water before the accident. Defendant argues that just because plaintiff did not Anotice@ soap, he was not prevented from seeing it, because it was an open and obvious condition. Defendant further points out that plaintiff assumed the risk of entering the subject premises at the wholesale entrance despite the existence of a separate retail entrance, which contained rubber mats on the floor. Because plaintiff was aware water was on the floor and the floor was being cleaned, the condition of the floor was open and obvious, warranting summary judgment.

Plaintiffs' Opposition to Summary Judgment

Plaintiffs contend that defendant breached its duties to keep the floors and stairs of the subject premises clear of slippery substances and to maintain entrances and exits that are not inherently dangerous. Plaintiffs argue that the wet and soapy condition on the Adangerously pitched loading dock@ caused plaintiff to fall and that this condition was not open and obvious. Plaintiff did not see defendant=s employees throwing water on the loading dock where he slipped, and he did not see soap on the loading dock until after he fell. In sum, plaintiffs argue that whether plaintiff failed to observe the wet or soapy conditions in the loading-dock area prior to [*3]the accident is an issue of fact sufficient to preclude summary judgment. Further, plaintiffs argue that there was nothing for plaintiff to grab onto to prevent his fall. If a handrail had been in place, plaintiff would not have fallen, despite his right foot slipping. Plaintiffs argue that the absence of any handrail at the exit compounded defendant=s negligence.

Analysis

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR ' 3212 [b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient Aevidentiary proof in admissible form@ to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR ' 3212 [b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172[1st Dept 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR '3212 [b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra , 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562). Defendant Amust assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist@ and Athe issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief@ (Kornfeld v NRX Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686 [1984]). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v Steward M. Muller Constr. Co, 46 NY2d 276, 281-82, 413 NYS2d 309 [1978]; Fried v Bower & Gardner, 46 NY2d 765, 767, 413 NYS2d 650 [1978]; Platzman v American Totalisator Co., 45 NY2d 910, 912, 411 NYS2d 230 [1978]; Mallad Const. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290, 344 NYS2d 925 [1973]; Plantamura v Penske Truck Leasing, Inc., 246 AD2d 347, 668 NYS2d 157 [1st Dept 1998]).

Under New York law, a landowner must exercise reasonable care to maintain its premises in a safe condition in view of the circumstances, accounting for the possibility of injury to others, the seriousness of such injury, and the burden of avoiding such risk (see Basso v Miller, 40 NY2d [*4]233, 241, 386 NYS2d 564 [1976]). In order for a plaintiff to make out a prima facie case of negligence in cases involving dangerous conditions present on property, a plaintiff must Ademonstrate either that the defendant created the alleged hazardous condition or that the defendant had actual or constructive notice of the defective condition and failed to correct it" (Mitchell v. City of New York, —- NYS2d ——, 2006 WL 1278517 [1st Dept] citing Leo v Mt. St. Michael Academy, 272 AD2d 145, 146 [2000]).

In negligence actions, New York has abandoned contributory negligence and assumption of risk for a form of comparative negligence (Knieriemen v Bache Halsey Stuart Shields Inc., 74 AD2d 290, 295 [1st Dept 1980], appeal dismissed 50 NY2d 1021 [1980], appeal dismissed 51 NY2d 970 [1980]). In fact, CPLR ' 1411 provides:

In any action to recover damages for personal injury . . . the culpable conduct attributable to the claimant . . . , including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.^[FN1]