Castore v Tutto Bene Rest. Inc. (2010 NY Slip Op 07695 [77 AD3d 599]).
Plaintiff: Emmy Castore, Appellant
Defendant: Tutto Bene Restaurant Inc., dba Chelsea Restaurant, Respondent.
Procedural History:
Castore brought suit in the Civil Branch of the Supreme Court, New York County. The plaintiff sought damages for injuries she sustained as the result of a slip and fall that occurred on Defendant’s premises. The defendant moved for summary judgment to dismiss the complaint. The motion was granted unanimously by the Supreme Court. The case was then brought before the Appellate Court, First Division.
Facts:
The plaintiff contended that the defendant was negligent in allowing a safety hazard to exist on the premises, which resulted in her accident. The defendant argued that it never possessed notice, actual or constructive, that such hazard existed, and thus had no knowledge of the danger.
Legal Issues:
Was the defendant liable for the fall and injuries sustained by the plaintiff?
Was the plaintiff able to raise a triable question of fact in their rebuttal?
Did the lower court err in granting summary judgment for dismissal of the complaint?
Result:
The Appellate Court affirmed the Supreme Court’s ruling and summary judgment for the defendant upheld.
Legal Discussion:
The defendant was able to show, prima facie, that it possessed no notice, actual or constructive, of the alleged hazard that caused the plaintiff to fall, resulting in her injuries. The defendant provided an affidavit from the owner and manager of the restaurant, as well as that of an employee, asserting that the defendant had no knowledge of the alleged risk. Included in the affidavit was a statement by the employee that he had gone down the same stair(s) in question just prior to the incident, and had not seen any evidence of liquid or other hazard on the stair.
It therefore became the plaintiff’s responsibility to convincingly refute the defendant’s proof. In rebuttal the plaintiff speculated that an employee may have spilled liquid on the stair(s) while bringing food from the kitchen to the dining area. In an affidavit provided by the plaintiff’s expert witness, he suggested that the absence of a hand-rail for a “single step at the bottom of the landing” (Cantore) was probably responsible for the plaintiff’s fall. Referring to Kane, the Court held that sheer speculation alone is not sufficient evidence to warrant further proceedings. Additionally, the Court noted that the plaintiff, in her deposition, surmised only that she slipped due to the presence of a liquid on the stair, and made no mention of the absence of a hand rail. The Court held, therefore, that there was no evidence to suggest that the absence of a hand rail contributed to the accident.
Comments:
Speculation or supposition alone, are not sufficient evidence to remand a case to trial. Without more substantial evidence, summary judgment will likely be granted to the party that provides evidence to support their argument.
Parties should be aware that their testimony, and that of their witness(es), whether in person, by affidavit, or by deposition, must be consistent in order to provide substantial evidence.
Nomenclature in the New York Court System may prove confusing. In the New York State Unified Court System, the Supreme Court, New York County (which includes New York City), is divided into the civil and criminal branches, and does not represent the highest court in the state. The highest court in the state of New York is the New York Court of Appeals.
Cases Cited:
Castore v Tutto Bene Rest. Inc. (2010 NY Slip Op 07695). http://www.courts.state.ny.us/Reporter/3dseries/2010/2010_07695.htm
Kane v Estia Greek Rest.Inc., 4 AD3d 189, 190 (2004).
