From Casetext: Smarter Legal Research

Tiano v. Nick's Lobster Seafood Restaurant

Appellate Division of the Supreme Court of New York, Second Department
Dec 16, 2002
300 A.D.2d 469 (N.Y. App. Div. 2002)

Opinion

2001-10631

Argued November 7, 2002.

December 16, 2002.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Cammer, J.), dated October 29, 2001, which denied its motion for summary judgment dismissing the complaint.

Dubow Smith, Bronx, N.Y. (Israelson Gold, Plainview, N.Y. [Jeffrey B. Gold] of counsel), for appellant.

Michael N. David, New York, N.Y., for respondent.

Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant demonstrated its prima facie entitlement to summary judgment by establishing that it neither created a defective condition in the wooden walkway leading to its restaurant upon which the plaintiff's decedent Isaac Tiano allegedly fell, nor had actual or constructive notice of any defect (see Constance v. Food Emporium, 289 A.D.2d 363; Slater v. Stop Shop Supermarket Co., 282 A.D.2d 445; Ferris v. County of Suffolk, 174 A.D.2d 70). In opposition, the plaintiff failed to establish the existence of a triable issue of fact (see O'Callaghan v. Great Atl. Pac. Tea Co., 294 A.D.2d 416). The plaintiff's decedent never identified the cause of his fall before he died (of unrelated causes) (see Skinner v. City of Glen Cove, 216 A.D.2d 381), and his son-in-law, although present during the incident, was also unable to identify any causative defect (see Bongiorno v. Penske Auto. Ctr., 289 A.D.2d 520). The Supreme Court therefore should have granted the defendant's motion.

ALTMAN, J.P., S. MILLER, LUCIANO and RIVERA, JJ., concur.


Summaries of

Tiano v. Nick's Lobster Seafood Restaurant

Appellate Division of the Supreme Court of New York, Second Department
Dec 16, 2002
300 A.D.2d 469 (N.Y. App. Div. 2002)
Case details for

Tiano v. Nick's Lobster Seafood Restaurant

Case Details

Full title:ISAAC TIANO, respondent, v. NICK'S LOBSTER SEAFOOD RESTAURANT AND CLAM…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 16, 2002

Citations

300 A.D.2d 469 (N.Y. App. Div. 2002)
751 N.Y.S.2d 424

Citing Cases

Saryian v. Ramana, Inc.

As a general rule, a party does not sustain its burden in moving for summary judgment by pointing to gaps in…

Marszalkiewicz v. Plaza

An officer of the company responsible for servicing the door further testified that defendant had made no…