Slipping on the Ritz: Court finds bar operator had no actual or constructive notice of alleged “dangerous condition” on stairs

Virgil Alessi v. G-Squared R.E., Inc., et al., Supreme Court, New York County, March 2, 2011

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Dismissing a slip-and-fall Complaint by a patron of the Ritz Bar & Lounge against its operators, Justice Milton A. Tingling recently granted AGF&J clients’ Motion for Summary Judgment. Plaintiff generally claimed that he had slipped on some unidentified liquid when descending stairs on return from a trip to the bathroom. Yet, as AGF&J member Irwin D. Miller and associate James E. Kimmel showed, the details mattered. When the facts from the deposition of plaintiff were set forth, the Court agreed that plaintiff could not establish that the defendants had any notice that any alleged “dangerous condition” existed at the bar. The plaintiff had climbed the stairs to visit a second-floor bathroom, not noticing any liquid on the stairs on his way up. After waiting on line for a period of a “couple of minutes”, he retraced his steps. Somehow, while descending the stairs, he fell and injured himself.

In a 12-page Decision, Justice Tingling held that plaintiff had failed to establish either actual or constructive notice of any dangerous condition for which he was seeking to hold the bar liable. It was not enough that the location of the accident was a bar, even if other patrons there had generally spilled drinks or littered, since such general observations could not constitute notice of the supposedly dangerous condition.

Plaintiff tried to rebut the defendant’s prima facie entitlement to summary judgment with the affidavit of an alleged witness, who claimed he had observed other patrons spilling liquid while waiting with the plaintiff to use the bathroom. The Court rejected the affidavit, writing “It would be importunate for the court to consider his affidavit, submitted now, which appears to contradict plaintiff’s EBT and to be tailored to avoid the consequences of plaintiff’s earlier testimony.” The Court also found that an affidavit of plaintiff’s expert did not raise a triable issue of fact. The expert discussed supposed structural problems with the stairs, when plaintiff’s claim was premised upon liquid on the floor, and the expert made only speculative and conclusory assertions based upon an inspection done a year and a half after the alleged accident.