Gagliardi v Compass Group, USA, Inc.
2019 NY Slip Op 05006 [173 AD3d 574]
June 20, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 31, 2019


[*1]
 Mario Gagliardi, Appellant,
v
Compass Group, USA, Inc., et al., Respondents.

Russo & Toner, LLP, New York (Josh H. Kardisch of counsel), for appellant.

Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale (Robb Denney of counsel), for Compass Group USA, Inc. and others, respondents.

Tobias & Kuhn, New York (Curtis B. Gilfillan of counsel), for Seven Hanover Associates, LLC, respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered January 24, 2018, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action where plaintiff was injured when he slipped and fell in defendants' cafeteria, defendants established their prima facie entitlement to judgment as a matter of law by showing that they neither created nor had notice of the slippery condition that caused plaintiff's fall. Defendants submitted evidence including their cleanup inspection schedule which indicated that the cafeteria floor was inspected every 15 minutes and was inspected about two minutes prior to plaintiff's fall, and the testimony of the cafeteria manager that no liquid was observed on the cafeteria floor (see Gomez v J.C. Penny Corp., Inc., 113 AD3d 571 [1st Dept 2014]; Warner v Continuum Health Care Partners, Inc., 99 AD3d 636, 637 [1st Dept 2012]).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's claim that the cafeteria's employees created the allegedly slippery condition by allowing an ice cube to fall on the floor is speculative. Plaintiff testified that he did not observe anything on the floor prior to his fall, he did not see the substance that he slipped on, and he had no idea how long the liquid substance was on the floor or how it got there (see Briggs v Pick Quick Foods, Inc., 103 AD3d 526 [1st Dept 2013]; Smith v Costco Wholesale Corp., 50 AD3d 499, 500 [1st Dept 2008]).

We have considered plaintiff's remaining contentions and find them unavailing. Concur—Friedman, J.P., Richter, Kahn, Singh, JJ. [Prior Case History: 2018 NY Slip Op 30139(U).]