Plaintiff commenced this action by summons and complaint filed August 7, 2003. Plaintiff claimed that she fell while dancing at Defendant's premises when her sandal stuck to tape which was covering wires. Defendant denied the allegations in its answer dated November 13, 2003. On March 30, 2011 the action was transferred to this Court, pursuant to NY Civ. Pract. Law & Rules §325(d), for a trial without jury. The trial was conducted in one day. Plaintiff relied upon four witnesses; each of the Plaintiffs, the Defendant owner, and transcript testimony of Defendant's employee not present at trial. Defendant did not call any witnesses. The Court reserved decision.

Plaintiff was a patron of the Cat's Meow Lounge once before. On June 14, 2003, she arrived at the lounge with her husband at about 9:30PM. They went to listen to a band whose members were employees from her place of employment. Plaintiff had dinner before arriving, but denied that she had any alcohol. When she arrived the band had not yet started playing, but the equipment had been set up. Plaintiff said that during the two hours she was there, she only had one cosmopolitan to drink. She ordered a second which she had not yet started drinking.

Plaintiff was listening to the band and dancing in place to "funk and soul" music. Plaintiff was wearing an open-toe sandal with a small heel. The dance area was about 12 by 12, lighted but dim. After about five (5) minutes, she felt something stick to the bottom of her sandal. She lifted her leg, causing her foot to come out of the sandal, and she fell. After the fall, she saw gray tape on the floor. The tape was used to cover wires that ran from the wall to the musical equipment. Plaintiff was not aware if anyone else complained about the wires or the tape. Plaintiff did not trip on the wires; her sandal got stuck to the tape.

Plaintiff's husband was watching his wife on the dance floor only several feet away. He did not see any tape on the floor before the incident. After the incident, he saw the tape had been twisted with the sticky side up where his wife's sandal got stuck.

The lounge has since closed. The sole owner of the lounge testified that she was not present at the premises that day or evening. She described the lounge area as having wall sconces for lighting, lamps on tables, and candles on other tables. Her employees were responsible for inspecting and opening the lounge, and it was customary for bands to bring and assemble their own musical equipment.

The deposition of a waitress was read into the record by Plaintiff's counsel. The Plaintiff knew the waitress because their daughters attended the same pre-school. The waitress had been employed at the lounge for about five years before the incident. The waitress testified that the staff was responsible for inspecting the premises before opening the door to the patrons. She stated, "Always I need to walk through that room. I don't need to trip. It's always taped down." In response to whether any lounge employees had to ask the band to tape the wires down, she responded, "they know themself, they have to tape. We have never really mentioned to them because they bring the tape with them." The bands taped the wires down to prevent tripping. She stated, "when I first walk in, I examine the floor myself to make sure the tapes, all the tape is down." The waitress was not aware of any prior occasions where anyone had tripped on the wiring or tape. She also was not aware of any complaints made by patron about the wiring or tape.

In this "stick and fall" case, Plaintiff must prove that Defendant breached a duty of care owed to the injured party and that said breach proximately caused the resulting accident and injury. Grinberg v Luna Park Housing Corp., 22 Misc 3d 1131(A) (Kings Cnty Supreme, March 2009). Plaintiff must further show that the alleged defendants either created the alleged hazardous condition or that they had actual or constructive notice of the condition. Grinberg v Luna Park Housing Corp., id. To constitute constructive notice, a defect mist be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a Defendant's employees to discover and remedy it. Gordon v American Museum of Natural History, 67 NY2d 836 (1986); see also, Kramer v SBR & C et.al., 62 AD3d 667 (2d Dep't 2009). It has been held that a plaintiff may satisfy this burden by evidence that an ongoing and [*3]recurring dangerous condition existed in the area of the accident which was routinely left unaddressed by the defendant. Grinberg v Luna Park Housing Corp., supra. Mere general awareness that a hazardous condition could occur does not obviate the plaintiff's obligation to establish that the defendant had actual or constructive notice of the particular condition which caused plaintiff to fall. Grinberg v Luna Park Housing Corp., supra. Defendant is required to offer some evidence as to when the area in question had last been cleaned or inspected relative to the time when plaintiff fell. Reid v The Gap, Inc., 2011 WL 1674682 (NY Sup. App. Term, April 2011). A defendant fails to establish that it did not have actual or constructive notice where defendant fails to provide a time for the last inspection preceding the plaintiff's fall. Nugent v 1235 Concourse Tenants Corp., ___ AD2d ___ (1st Dep't 2011).

The Plaintiff's case in chief provided the court with sufficient evidence to render it's decision despite the Defendant not calling any witnesses. This case does not turn on whether the Plaintiff fell that night. The question is whether the Plaintiff proved any of the prongs of the tests set forth above. This Court finds that the Plaintiff has not.

First, Plaintiff did not establish that Defendant created the alleged hazardous condition. The Defendant's waitress stated that it was always the band that taped their own wires if necessary. The waitress said that the employees never did the taping. Plaintiff did not provide any evidence that Defendant or its employees taped any wires down. Second, Plaintiff did not establish that the Defendant had actual or constructive notice of the alleged condition. Defendant's waitress' uncontroverted testimony was that she personally inspected the floor before opening the doors to the patrons. The waitress did not notice any tape turned up. She routinely inspected the floors because she roamed the lounge serving patrons as part of her job. No testimony was offered that the waitress had any wire or tape problems that night. Additionally, neither the Plaintiff, nor the waitress, was aware that anyone had made a complaint about any wires or tape creating an issue that evening. The Court must also take into consideration that the Plaintiff was dancing for no less than 5 minutes in the area without any interference by wires or tape which calls into question whether the tape lifted so soon prior to the fall that the Defendant could not have had actual or constructive notice.

In trying to prove an ongoing and dangerous condition, Plaintiff referred to another fall occurring at the premises nearly two months before this incident. The Court finds that argument without merit because of the lapse of time between the two events, and the uncountable factors that may have intervened. It is not merely that a condition happened once before, but it must be ongoing, recurring and unaddressed.

Based upon the foregoing, it is hereby

ADJUDGED, that Plaintiff failed to prove that Defendant or its employee created the alleged hazardous condition; and it is further

ADJUDGED, that Plaintiff failed to prove that Defendant had actual or constructive notice of the alleged hazardous condition; and it is further

ADJUDGED, that Plaintiff failed to establish an ongoing and recurring dangerous [*4]condition existed in the area of the accident which was routinely left unaddressed by the defendant; and it is further

ORDERED, that the complaint is dismissed.

This constitutes the decision and order of the Court.

ENTER

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Judge