Joseph Catalano et al., Appellants,v.Laurie Tanner,, Respondent.BriefN.Y.Jun 3, 2014 OFFICES IN BUFFALO ■ SYRACUSE ■ UTICA ■ KINGSTON March 31, 2014 New York State Court of Appeals 20 Eagle Street Albany, New York 12207 RE: Catalano v Tanner dba Dan’s Restaurant APL-2014-00026 TO THE JUSTICES OF THE COURT OF APPEALS: This action for personal injuries arose out of a metal-frame chair collapsing under the plaintiff-respondent Joseph Catalano in 2008 at Dan’s Restaurant in Angola, New York, which is owned by the defendant-respondent Laurie Tanner, now Laurie Paradiso (hereafter “the respondent” or “Ms. Paradiso”). The Fourth Department Appellate Division granted summary judgment dismissing the complaint with two dissents (112 A.D.3d 1299), and this appeal “as of right” ensued. Statement of Facts The plaintiff's factual recitations are accurate, the respondent wishing only to stress that, prior to the accident she had never had a chair break, nor received a single complaint about a chair (R 97). In addition, every night to sweep and mop New York State Court of Appeals March 31, 2014 Page 2 the floors she moved the chairs, which always remained in the same place, and also thoroughly inspected them approximately monthly when she cleaned their seats and legs and, in the process, determined that every chair felt solid (R 96, 97). She had customers she cared about who weighed over 300 pounds, and was therefore she determined that the chairs were sturdy before she bought them, and thereafter remained concerned to ensure that the chairs could support her patrons (R 99, 100). Notably absent from the record is any evidence that some other manner of inspections ought to have been made, of a kind that would have disclosed the latent defect that caused the plaintiff's chair’s rear legs to snap where they were joined to the seat. The respondent’s inspections clearly were of a kind reasonable and normal for a small restaurant owner, whose employees do not include safety supervisors, engineers, mechanics, or others who are qualified to upend all the chairs periodically so as to closely inspect their joints for weaknesses. The respondent had no employees at all to help run her restaurant, apart from family members: Q. Let me just back up for one second. We're talking about your role in the restaurant. You told me you're the owner, you do everything. Could you describe some of the things that you do as the owner? New York State Court of Appeals March 31, 2014 Page 3 A. I buy all the supplies, I am the grill cook, I cook in the kitchen, I sweep, keep everything clean, restock fridges, cash people out. It's a one girl operation pretty much. Q. Do you have any other employees that work for you? A. Just family members. (R 90). That some other type of inspections than the respondent’s were both reasonable, for such a small businessowner, and would have disclosed the latent defect, it was the plaintiff's burden to prove, in order to overcome the respondent’s prima facie proof of her entitlement to summary judgment, but no such proof was offered. Accordingly, the decision below should be affirmed. ARGUMENT POINT I SUMMARY JUDGMENT WAS PROPERLY GRANTED TO THE RESPONDENT BECAUSE SHE PROVED HER LACK OF PRIOR NOTICE, AND NO EVIDENCE WAS OFFERED THAT HER PRIOR VISUAL INSPECTIONS WERE NOT REASONABLE. New York State Court of Appeals March 31, 2014 Page 4 The majority in the Appellate Division rightly held that the respondent had proved her entitlement to summary judgment prima facie, because the undisputed facts establish that she had no notice, actual or constructive, of the latent defect of the metal-frame chair, whose legs snapped when the plaintiff sat on it: 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 AD3d 537, 538 ; see generally King v Sam's E., Inc., 81 AD3d 1414, 1414-1415 ). 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 AD3d 1446, 1447 ). 112 A.D.3d at 1299-1300)(emphasis added). See also, e.g., SHEEHAN v. STEVENS, 39 A.D.3d 622 [2d Dept 2007], stating: New York State Court of Appeals March 31, 2014 Page 5 A defendant property owner who moves for summary judgment in a premises liability case has the initial burden of establishing, prima facie, that it neither created the defective condition nor had actual or constructive notice of the condition for a sufficient length of time to discover and remedy it (see Solomon v Loszynski, 21 AD3d 366 ; McKeon v Town of Oyster Bay, 292 AD2d 574 ; Abrams v Powerhouse Gym Merrick, 284 AD2d 487 ). Rejecting the plaintiff's, and the dissenters’, argument that a question of fact existed as to the reasonableness of the respondent’s inspections (which failed to specify what sort of inspections would be reasonable under the circumstances), the Appellate Division stated: Plaintiffs failed to raise a triable issue of fact in opposition to the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 ). 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 AD3d 1716, 1717 ). 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 AD3d at 1448; Pommerenck, 79 AD3d at 1718; Scoppettone v ADJ Holding Corp., 41 AD3d 693, 695 ), 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 New York State Court of Appeals March 31, 2014 Page 6 the alleged defective condition of the chair. The IAS court, contrary to several Appellate Division precedents that have granted or affirmed summary judgment upon undistinguishable facts, denied summary judgment on the grounds that there is a question of fact as to whether Ms. Paradiso’s pre-accident inspections of the chairs were reasonable. However, no evidence was offered to prove that a reasonable inspection of the chairs would have disclosed that the leg of the chair in question was in danger of breaking. 112 A.D.3d at 1300 (emphasis added). Cf. IVANCIC v. OLMSTEAD, 66 N.Y.2d 349 (1985), holding that absent any “readily observable” decay in a tree, “which would alert an observer to the possibility that the tree or one of its branches was decayed or defective,” a landowner had no greater duty of inspection stating: Although there may have been evidence that would have alerted an expert, upon close observation, that the tree was diseased, there is no evidence that would put a reasonable landowner on notice of any defective condition of the tree. Thus, the fact that defendant landowner testified that she did not inspect the tree for over 10 years is irrelevant. 66 N.Y.2d at 351 (emphasis added). Cf. also, e.g., BARBARA ANDERSON v. RAY JUSTICE, 96 A.D.3d 1446 (4th Dept 2012), in which a dock collapsed, stating: "Where . . . there is nothing to arouse the [property owner's] suspicion, he [or she] has no duty to inspect" (Appleby v Webb, 186 AD2d 1078, 1079 ; see Scoppettone v ADJ Holding Corp., 41 AD3d 693, 695 ). Here, as noted above, defendant inspected the dock prior to placing it in the water each year, used the dock regularly without incident and New York State Court of Appeals March 31, 2014 Page 7 received no complaints from his neighbors, including plaintiff Barbara Anderson, who likewise routinely used the dock without incident. Further, there is no evidence in the record that the dock showed signs of deterioration, such as rusted nails, rotted or discolored wood or corroded metal (cf. Serna v 898 Corp., 90 AD3d 560, 560 ; Babcock v County of Albany, 85 AD3d 1425, 1426-1427 ; Oates v Iacovelli, 80 AD3d 1059, 1060-1061 ). Under the circumstances of this case, we conclude that it was reasonable for defendant to conduct a pre-season inspection of the dock and thereafter to rely upon personal observations and any complaints to determine whether further inspection or maintenance was required (see generally Gover v Mastic Beach Prop. Owners Assn., 57 AD3d 729, 731 ). Thus, plaintiffs failed to raise a triable issue of fact concerning defendant's constructive notice of the alleged dangerous or defective condition of the dock. 96 A.D.3d at 1448. Likewise here, there was nothing prior to this accident that would have alerted a reasonable owner of a restaurant to any defective condition of the chair, thereby triggering a duty of closer inspection. The order appealed from accords completely with other, well-reasoned decisions of the Appellate Division. In support of her motion … [defendant stated]… that before the plaintiff’s accident, she used the deck chairs on many occasions and never observed them to be dangerous or unsafe in any way, that to her knowledge no one was ever injured as a result of sitting in the chairs or otherwise using them, and that no one ever complained about the chairs being dangerous or unsafe. Contrary to the plaintiff’s contention, this evidence was sufficient to establish the defendant prima facie New York State Court of Appeals March 31, 2014 Page 8 entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 ; Zuckerman v City of New York, 49 NY2d 557 ; Tiano v Nick’s Lobster & Seafood Rest. & Clam Bar, 300 AD2d 469 ). Levinstim v. Parker, 27 A.D.3d 698, 699-70 (2d Dept. 2006) (emphasis added). Here, as in Levinstim, the undisputed facts establish that th respondent was not negligent in using the allegedly defective chair in her restaurant, because it was apparently in good condition, and both respondent and the plaintiffs agree there were no known problems with any of the chairs before the plaintiff’s chair leg broke. The plaintiff, opposing summary judgment, made much of the fact that the metal-frame chairs were older and had been purchased used, but the mere fact that furniture is older does not, contrary to the plaintiff, create a heightened inspection obligation. In this regard, this case compares directly with Fernandez v. Ramos, 300 A.D.2d 348 (2d Dept. 2002), where summary judgment was granted on the grounds that the defendant had no notice of a alleged defect in an older chair: The chair in question was among the furnishings left in the basement apartment by the defendants for the [tenants] to use when they first moved in eleven years earlier. [The tenant] affirmed that he inspected the furnishings at that time and found them to be in perfect condition, and further stated that he has maintained the furniture since then, having inspected the chair in question just two months before the accident when he last varnished it. New York State Court of Appeals March 31, 2014 Page 9 Id. at 348 (emphasis added). Further, a plaintiff must show more than a mere general awareness that a dangerous condition could possibly exist, e.g., because a chair is older equipment, to raise a question fact: The defendants made a prima facie showing that they neither created nor had actual or constructive notice of the defective condition of the chair (see Gordon v. American Museum of Natural History, 67 NY2d 836 ). The evidence submitted by the injured plaintiff in opposition to the motion raised an issue of fact only as to whether the defendants had a general awareness that a dangerous condition might exist, which is an insufficient predicate for liability in the absence of notice of the particular condition which caused the plaintiff’s fall (see Piacquadio v. Recine Realty Corp., 84 NY2d 967 ). The plaintiffs failed to raise a triable issue of fact as to notice of the particular condition. Loiacono v. Stuyvesant Bagels, Inc., 29 A.D.3d 537 (2d Dept. 2006) (emphasis added). Here, it is undisputed that Ms. Paradiso had no knowledge of anyone being injured by any of the chairs, nor that any chair exhibited any weakness or instability, nor that anyone had complained that the chairs were less than completely sound. Moreover, she testified that she inspected the chairs when they were purchased, and also inspects them on a monthly basis. New York State Court of Appeals March 31, 2014 Page 10 Accordingly, the Appellate Division correctly held that the plaintiff failed to rebut the respondent’s factual demonstration that she lacked prior notice, actual or constructive, that the chair leg was in danger of snapping. This court therefore is urged to affirm the decision appealed from, and grant all other appropriate relief. POINT II THE DOCTRINE OF RES IPSA LOQUITUR DOES NOT APPLY. Rejecting the plaintiffs argument that the doctrine of res ipsa loquitur supports a question of fact as to the movant’s negligence, and whether such can be inferred from the mere circumstances of this accident, the Fourth Department stated: 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 plaintiffs injuries," i.e., the chair (Moore v Ortolano, 78 AD3d 1652, 1653 ; see Chini v Wendcentral Corp., 262 AD2d 940, 940 , lv denied 94 NY2d 752 ). 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 AD3d 472, 472 , quoting Dermatossian v New New York State Court of Appeals March 31, 2014 Page 11 York City Tr. Auth., 67 NY2d 219, 228 ; see Loiacono, [supra] 29 AD3d at 538; Chini, 262 AD2d at 940). 112 A.D.3d at 1300-1301 (emphasis added). The correctness of this decision is beyond cavil, despite arguably contrary, but distinguishable or incorrectly decided cases cited by the plaintiff. For plaintiffs to rely on this doctrine, they must establish that: [T]he possibility that the event was caused by the negligence of someone other the defendant is so remote that it is fair to permit an inference that the defendant is the negligent party. Fernandez, supra p. 8, 300 A.D.2d at 349 (internal citations omitted). This exact same argument was rejected in both Fernandez and Loiacono, supra, and in Hardesty v. Harlem, 79 A.D.3d 472 (1 st Dept. 2010), in all of which summary judgment was granted dismissing the complaint of a person whose chair collapsed. Hardesty held: The motion court 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 NY2d 219, 228 ; see Loiacono v Stuyvesant Bagels, Inc., 29 AD3d 537 ; Rivera-Emerling v M. Fortunoff of Westbury Corp., 281 AD2d 215, 217 ). New York State Court of Appeals March 31, 2014 Page 12 79 A.D.3d at 472 (emphasis added). Loiacano similarly held: Furthermore, the Supreme Court properly concluded that the doctrine of res ipsa loquitur was inapplicable, since the evidence established that the defendants did not have exclusive control over the chair which collapsed (see Dermatossian v New York City Tr. Auth., 67 NY2d 219 ). The defendant bagel shop was open to the public for more than six hours before the plaintiff's accident, and the defendant John DeSimone, one of the owners of the bagel shop, averred in an affidavit in support of the motion, that many customers sat on the chair before the injured plaintiff did (see Rivera- Emerling v M. Fortunoff of Westbury Corp., 281 AD2d 215 ; Chini v Wendcentral Corp., 262 AD2d 940 ). 29 A.D.3d at 538 (emphasis added). Likewise here, there simply is no evidence that would permit a jury to infer, from the mere happening of the accident, negligence on the part of the respondent Laurie Paradiso, who had not been “in exclusive control” of the chair that caused the injury, as required for application of the doctrine. The chair not only was located in a public restaurant, as in Hardesty and Loicaono, where its leg could have been weakened as lately as the day before by some patron teetering on it; but the chair had been used, presumably for many years, by the patrons of its prior owner, a bowling alley, and its leg could have been damaged or weakened somehow by any one of them even before it was bought by the respondent. New York State Court of Appeals March 31, 2014 Page 13 Further, the chair may simply have had an inherent weakness in its construction, or in the materials used for the particular leg or its attachment, or in the manner of its attachment, all of which potentially would be attributable, not to Ms. Paradiso, but to the manufacturer’s negligent design or manufacture; or, attributable to the manufacturer under the doctrine of strict products liability. As a matter of law, therefore, res ipsa loquitur cannot be applied to require a trial of this action, and the order of the Appellate Division should be affirmed. CONCLUSION For the foregoing reasons, and in accord with the authorities cited and discussed herein, it is respectfully requested that this court issue an order affirming the order appealed from, and granting all other appropriate relief. Buffalo, New York March 31, 2014 Laurence D. Behr cc: Shaw & Shaw, P.C.