Opinion
2014-11-26
Jacqueline ESPINAL, appellant, v. SIX FLAGS, INC., et al., respondents.
Mark E. Seitelman Law Offices, P.C., New York, N.Y. (Mara G. Pandolfo of counsel), for appellant. Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (Sarah J. Eagen and John S. Rand of counsel), for respondents.
Mark E. Seitelman Law Offices, P.C., New York, N.Y. (Mara G. Pandolfo of counsel), for appellant. Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (Sarah J. Eagen and John S. Rand of counsel), for respondents.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Elliot, J.), dated December 14, 2012, which granted the defendants' motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for leave to amend the bill of particulars.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly slipped and fell on a staircase at Six Flags Great Adventure amusement park in Jackson, New Jersey. The plaintiff claimed that when she stepped onto the second to last stair of the staircase, she felt something shift, causing her foot to move inwards and her body to fall forward. After she fell, the plaintiff noticed that a metal plate on the step was loose and a screw appeared to be missing from the plate.
The defendants established their prima facie entitlement to judgment as a matter of law ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572) by demonstrating that they did not create or have actual or constructive notice of any hazardous condition on the staircase ( see Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, 818 A.2d 314, 316; Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291, 471 A.2d 25, 30; Schnatterer v. Bamberger, 81 N.J.L. 558, 562, 79 A. 324, 325–326). The defendants submitted proof that they had received no complaints about the subject staircase at any time prior to the plaintiff's accident, and that on the day of the accident their employees had inspected the staircase twice prior to the accident, and found it to be intact. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the alleged hazardous condition ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Contrary to the plaintiff's contention, the doctrine of res ipsa loquitur is not applicable here ( see Khan v. Singh, 200 N.J. 82, 91, 975 A.2d 389, 394–395; Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 398, 874 A.2d 507, 515; Eaton v. Eaton, 119 N.J. 628, 638, 575 A.2d 858, 863; Brown v. Racquet Club of Bricktown, 95 N.J. at 288, 471 A.2d at 29; Thompson v. Giant Tiger Corp. of Camden, 118 N.J.L. 10, 13, 189 A. 649, 650; Garland v. Furst Store, 93 N.J.L. 127, 131, 107 A. 38, 40).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for leave to amend the bill of particulars to allege a theory of res ipsa loquitur, since the amendment was palpably insufficient or patently devoid of merit ( seeCPLR 3025[b]; Aurora Loan Servs., LLC v. Dimura, 104 A.D.3d 796, 962 N.Y.S.2d 304; Creese v. Long Is. Light. Co., 98 A.D.3d 708, 711, 950 N.Y.S.2d 167; Ramos v. Baker, 91 A.D.3d 930, 932, 937 N.Y.S.2d 328).