Hardesty v. Slice of Harlem, II, LLC

• Decision Date: 07 December 2010
• Citation: 911 N.Y.S.2d 624,79 A.D.3d 472
• Parties: Mark HARDESTY, Plaintiff-Appellant, v. Slice of HARLEM, II, LLC, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 624

79 A.D.3d 472

Mark HARDESTY, Plaintiff-Appellant,

v.Slice of HARLEM, II, LLC, Defendant-Respondent.

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

Dec. 7, 2010.

Scott A. Wolinetz, P.C., New York (Scott A. Wolinetz of counsel), for appellant.

Lewis, Brisbois, Bisgaard & Smith, LLP, New York (Gregory S. Katz of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 17, 2009, which, in an action for personal injuries allegedly sustained when the chair in which plaintiff was sitting collapsed causing him to hit his head against the wall, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion properly found that plaintiff failed to present triable issues of fact for application of the theory of res ipsa loquitur. The 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" ( Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 228, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [1986]; see Loiacono v. Stuyvesant Bagels, Inc., 29 A.D.3d 537, 814 N.Y.S.2d 695 Rivera-Emerling v. M. Fortunoff of Westbury Corp., 281 A.D.2d 215, 217, 721 N.Y.S.2d 653 [2001] ).

TOM, J.P., ANDRIAS, SWEENY, DeGRASSE, ROMÁN, JJ., concur.