Tiano v. Nick's Lobster & Seafood Restaurant & Clam Bar

Dec 16, 2002
Versions:300 A.D.2d 469
751 N.Y.S.2d 424

—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.

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 plaintiffs decedent Isaac Tiano allegedly fell, nor had actual or constructive notice of any defect (see Constance v Food Emporium, 289 AD2d 363; Slater v Stop & Shop Supermarket Co., 282 AD2d 445; Ferris v County of Suffolk, 174 AD2d 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 AD2d 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 AD2d 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 AD2d 520). The Supreme Court therefore should have granted the defendant’s motion. Altman, J.P., S. Miller, Luciano and Rivera, JJ., concur.