Opinion
CA 05-02242.
March 17, 2006.
Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered February 18, 2005 in a personal injury action. The order denied defendant's motion for summary judgment dismissing the complaint.
LAW OFFICE OF MARY A. BJORK, ROCHESTER (THOMAS P. DURKIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MERKEL AND MERKEL, ROCHESTER (DAVID A. MERKEL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Pigott, Jr., P.J., Hurlbutt, Gorski, Smith and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell in defendant's restaurant. We agree with defendant that Supreme Court erred in denying his motion for summary judgment dismissing the complaint. Defendant established his entitlement to judgment as a matter of law by submitting the deposition testimony of a waitress who testified that the 80-year-old plaintiff tripped over his own feet as he walked to the salad bar. Although in opposition to the motion plaintiff submitted his deposition testimony in which he testified that he fell when his foot became caught on the chair of another restaurant patron who had moved his chair in order to stand, plaintiff did not thereby raise an issue of fact whether a dangerous condition existed at defendant's restaurant and, if so, whether defendant had actual or constructive notice of that dangerous condition ( see George v. Ponderosa Steak House, 221 AD2d 710; see generally Gordon v. American Museum of Natural History, 67 NY2d 836).