Catalano v. Tanner

• Decision Date: 27 December 2013
• Citation: 978 N.Y.S.2d 494,112 A.D.3d 1299,2013 N.Y. Slip Op. 08683
• Parties: Joseph CATALANO and Barbara Catalano, Plaintiffs–Respondents, v. Laurie TANNER, Individually and Doing Business as Dan's Restaurant, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1299

978 N.Y.S.2d 494

2013 N.Y. Slip Op. 08683

Joseph CATALANO and Barbara Catalano, Plaintiffs–Respondents,

v.Laurie TANNER, Individually and Doing Business as Dan's Restaurant, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 27, 2013.

Barth Sullivan Behr, Buffalo (Laurence D. Behr of Counsel), for Defendant–Appellant.

Shaw & Shaw, P.C., Hamburg (Jacob A. Piorkowski of Counsel), for Plaintiffs–Respondents.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Joseph Catalano (plaintiff) when a chair at a restaurant owned by defendant collapsed as he sat on it, causing him to fall to the ground. We agree with defendant that Supreme Court erred in denying her motion for summary judgment dismissing the complaint.

Defendant met her initial burden of establishing that she neither created nor had actual or constructive notice of the allegedly defective condition of the chair ( see Loiacono v. Stuyvesant Bagels, Inc., 29 A.D.3d 537, 538, 814 N.Y.S.2d 695; see generally King v. Sam's E., Inc., 81 A.D.3d 1414, 1414–1415, 917 N.Y.S.2d 480). In support of the motion, defendant submitted, inter alia, the deposition testimony of plaintiff and his wife, plaintiff Barbara Catalano, and defendant. Plaintiff and his wife testified that, prior to the accident, they had patronized defendant's restaurant for a number of years and had never noticed or encountered any problems with the metal-framed chairs at issue. Indeed, plaintiff testified that he went to the restaurant five mornings per week, that he and his dining companions sat at the same table and in the same chairs every morning, and that neither he nor his companions had ever experienced any problems with the chairs. On the day he fell, plaintiff did not notice anything wrong with the chair when he sat down, and he had no idea what caused the chair to collapse. Defendant testified that, prior to the accident, she had received no complaints about the chairs and no such chair had broken previously. With the exception of the chair at issue, defendant continued to use the same chairs at the restaurant, and has not experienced any problems with the chairs since the accident ( see generally Anderson v. Justice, 96 A.D.3d 1446, 1447, 946 N.Y.S.2d 739).

Plaintiffs failed to raise a triable issue of fact in opposition to the motion ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Plaintiffs asserted only that there were issues of fact concerning defendant's constructive notice, i.e., whether reasonable inspections of the chair would have disclosed the alleged defect that caused the chair to collapse. The duty of a property owner to inspect his or her property “is measured by a standard of reasonableness under the circumstances” (Pommerenck v. Nason, 79 A.D.3d 1716, 1717, 914 N.Y.S.2d 826). Here, defendant testified that she wipes down the chairs at the end of each day and that, “every month or so,” she performs a “major cleaning” of the restaurant, which includes an inspection of the chairs. In the absence of any prior complaints, incidents, accidents, or any other circumstances that should have aroused defendant's suspicion that the chairs were defective ( see Anderson, 96 A.D.3d at 1448, 946 N.Y.S.2d 739; Pommerenck, 79 A.D.3d at 1718, 914 N.Y.S.2d 826; Scoppettone v. ADJ Holding Corp., 41 A.D.3d 693, 695, 839 N.Y.S.2d 116), we conclude that plaintiffs failed to raise a triable issue of fact concerning the reasonableness of defendant's inspection practices, and thus whether defendant had constructive notice of the alleged defective condition of the chair.

We reject plaintiffs' alternative contention that notice to defendant was not required because the doctrine of res ipsa loquitur applies. That doctrine “does not apply here because, inter alia, defendant was not in exclusive control of the instrumentality that allegedly caused plaintiff's injuries,” i.e., the chair (Moore v. Ortolano, 78 A.D.3d 1652, 1653, 912 N.Y.S.2d 362; see Chini v. Wendcentral Corp., 262 A.D.2d 940, 940, 692 N.Y.S.2d 533, lv. denied94 N.Y.2d 752, 700 N.Y.S.2d 426, 722 N.E.2d 506). Specifically, “[t]he record is devoid of evidence that defendant's control of the chair, located in a restaurant open to the public where innumerable patrons had access to the chair, was sufficiently exclusive ‘to fairly rule out the chance that the defect ... was caused by some agency other than defendant's negligence’ ” (Hardesty v. Slice of Harlem, II, LLC, 79 A.D.3d 472, 472, 911 N.Y.S.2d 624, quoting Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 228, 501 N.Y.S.2d 784, 492 N.E.2d 1200; see Loiacono, 29 A.D.3d at 538, 814 N.Y.S.2d 695; Chini, 262 A.D.2d at 940, 692 N.Y.S.2d 533). The restaurant at issue is open to the public five days per week for breakfast and lunch, and plaintiff's wife testified that ...