| Catalano v Tanner |
| 2014 NY Slip Op 04045 [23 NY3d 976] |
| June 5, 2014 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| As corrected through Wednesday, July 23, 2014 |
| Joseph Catalano et al., Appellants, v Laurie Tanner, Individually and Doing Business as Dan's Restaurant, Respondent. |
Decided June 5, 2014
Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered December 27, 2013. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court, Erie County (James H. Dillon, J.), which had denied defendant's motion for summary judgment dismissing the complaint, (2) granted the motion, and (3) dismissed the complaint.
Plaintiffs commenced this action seeking damages for injuries allegedly sustained when a chair at a restaurant owned by defendant collapsed as one of the plaintiffs sat on it, causing him to fall to the ground. The Appellate Division concluded that 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 and that plaintiffs had failed to raise a triable issue of fact in opposition to defendant's summary judgment motion. The Appellate Division concluded that, 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, 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. The Appellate Division dissent concluded that there were issues of fact concerning the nature of the alleged defect that caused the chair to collapse and the reasonableness of defendant's preaccident inspection practices.
Catalano v Tanner, 112 AD3d 1299, reversed.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, and defendant's motion for summary judgment denied. Defendant failed to establish prima facie entitlement to judgment as a matter of law concerning the reasonableness of her inspection practices.
Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.