Opinion
2017–00401 2017–04896 Index No. 985/14
08-15-2018
Thomas BRENNAN, appellant, v. WAPPINGERS CENTRAL SCHOOL DISTRICT, respondent.
Michael F.X. Ryan, Cortlandt Manor, N.Y. (John J. Leen and Jeffrey Rizzo of counsel), for appellant. Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Edward F. Kealy of counsel), for respondent.
Michael F.X. Ryan, Cortlandt Manor, N.Y. (John J. Leen and Jeffrey Rizzo of counsel), for appellant.
Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Edward F. Kealy of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (James D. Pagones, J.), dated December 14, 2016, and (2) an order of the same court dated April 7, 2017. The order dated December 14, 2016, granted the defendant's motion for summary judgment dismissing the complaint, and denied the plaintiff's cross motion for summary judgment on the issue of liability and to impose sanctions for spoilation of evidence. The order dated April 7, 2017, denied the plaintiff's motion for leave to reargue and renew his cross motion and his opposition to the defendant's motion.
ORDERED that the appeal from the order dated April 7, 2017, is dismissed as abandoned; and it is further,
ORDERED that the order dated December 14, 2016, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff commenced this action against the defendant, Wappingers Central School District (hereinafter the School District), seeking to recover damages for personal injuries he allegedly sustained when he was performing subcontract work at a school located within the School District. According to the plaintiff, he was injured when a chair on which he was sitting collapsed during his lunch break. The chair was in the custodian's break room in the school. The plaintiff alleged that the School District had actual or constructive notice of the defective chair that caused his injuries, and he invoked the doctrine of res ipsa loquitur.
After discovery, the School District moved for summary judgment dismissing the complaint. The plaintiff opposed the motion and cross-moved, inter alia, for summary judgment on the issue of liability. In an order dated December 14, 2016, the Supreme Court granted the School District's motion for summary judgment dismissing the complaint, and denied the plaintiff's cross motion. Thereafter, in an order dated April 7, 2017, the court denied a motion by the plaintiff for leave to renew and reargue his cross motion and his opposition to the School District's motion. The plaintiff appeals from both orders, but has not raised any arguments in his brief as to the order dated April 7, 2017.
As a general rule, "[a] landowner has a duty to maintain its premises in a reasonably safe manner and, thus, may be found liable if it created or had actual or constructive notice of the alleged defective condition" ( Franzese v. Tanger Factory Outlet Ctrs., Inc., 88 A.D.3d 763, 764, 930 N.Y.S.2d 900 [citation omitted]; see Colella v. Marolla, 299 A.D.2d 515, 750 N.Y.S.2d 628 ; Price v. EQK Green Acres, 275 A.D.2d 737, 713 N.Y.S.2d 488 ; Robinson v. Lupo, 261 A.D.2d 525, 690 N.Y.S.2d 640 ). On a motion for summary judgment dismissing a complaint for lack of actual or constructive notice, the defendant has the initial burden of establishing, prima facie, the absence of notice of the condition for a sufficient length of time to discover and remedy the condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Giulini v. Union Free School Dist. # 1, 70 A.D.3d 632, 633, 895 N.Y.S.2d 453 ). The School District established its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that it did not have actual or constructive notice of any defect in the chair (see Marricco v. Best Plumbing Supply, Inc., 125 A.D.3d 826, 827, 4 N.Y.S.3d 241 ; Quinones v. Federated Dept. Stores, Inc., 92 A.D.3d 931, 932, 939 N.Y.S.2d 134 ). Since the plaintiff presented only unsubstantiated hearsay in opposition to the School District's motion, he failed to raise a triable issue of fact (see Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 744 N.E.2d 128 ; Weinstein v. Nicolosi, 117 A.D.3d 1036, 1037, 986 N.Y.S.2d 527 ; Roche v. Bryant, 81 A.D.3d 707, 708, 916 N.Y.S.2d 185 ; Allstate Ins. Co. v. Keil, 268 A.D.2d 545, 702 N.Y.S.2d 619 ).
Moreover, contrary to the plaintiff's contention, the doctrine of res ipsa loquitur is inapplicable, because one of the required factors for the doctrine to apply—that the instrumentality of the injury was in the exclusive control of the School District—cannot be established. The chair was located in the custodian break room accessible to third-party contractors of the School District, giving numerous people access to it (see Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621, 623, 518 N.Y.S.2d 776, 512 N.E.2d 297 ; Lococo v. Mater Cristi Catholic High School, 142 A.D.3d 590, 591, 37 N.Y.S.3d 134 ; Miranda v. City of New York, 79 A.D.3d 826, 827, 913 N.Y.S.2d 705 ).
The plaintiff's appeal from the order dated April 7, 2017, denying his motion for leave to renew and reargue, must be dismissed as abandoned, as the brief submitted by the plaintiff does not seek reversal or modification of any portion of that order (see Flink v. Flink, 92 A.D.3d 833, 834, 938 N.Y.S.2d 822 ). In any event, the portion of the order which denied that branch of the plaintiff's motion which was for leave to reargue is not appealable (see Matter of New S. Ins. Co. v. Rosado, 125 A.D.3d 867, 1 N.Y.S.3d 836 ).
The plaintiff's remaining contentions are without merit.
SCHEINKMAN, P.J., COHEN, DUFFY and CONNOLLY, JJ., concur.