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Ostuni v. East Rockaway Village Tavern, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 28, 1997
238 A.D.2d 558 (N.Y. App. Div. 1997)

Opinion

April 28, 1997


In an action to recover damages for personal injuries, etc., the defendant East Rockaway Village Tavern, Inc., s/h/a East River Tavern, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Kohn, J.), dated June 25, 1996, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

While the plaintiff Paschal Ostuni was ascending a staircase from the basement level to the first floor of the East Rockaway Village Tavern, the staircase collapsed, causing Ostuni to fall and to sustain severe injuries.

The Supreme Court properly denied the motion of the defendant East Rockaway Village Tavern, Inc., sued herein as East River Tavern, Inc. (hereinafter the Tavern), for summary judgment since it failed to initially show, as a matter of law, that it lacked actual or constructive notice of the alleged hazardous condition ( see, Padula v. Big V Supermarkets, 173 A.D.2d 1094, 1095; Colt v Great Atl. Pac. Tea Co., 209 A.D.2d 294, 294-295; see also, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Giacomontonio v. Incorporated Vil. of Val. Stream, 224 A.D.2d 580). Furthermore, there exist triable issues of fact as to whether the Tavern had exclusive control of the instrumentality in question and whether the doctrine of res ipsa loquitur is applicable ( see, e.g., Finocchio v. Crest Hollow Club, 184 A.D.2d 491).

The claim by the plaintiffs that the Supreme Court erred in granting the motion of the defendant Robert Edelman for summary judgment dismissing the complaint insofar as asserted against him is not properly before this Court for review since the plaintiffs did not cross-appeal. Bracken, J.P., Copertino, Santucci and McGinity, JJ., concur.


Summaries of

Ostuni v. East Rockaway Village Tavern, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 28, 1997
238 A.D.2d 558 (N.Y. App. Div. 1997)
Case details for

Ostuni v. East Rockaway Village Tavern, Inc.

Case Details

Full title:PASCHAL OSTUNI et al., Respondents, v. EAST ROCKAWAY VILLAGE TAVERN, INC.…

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

Date published: Apr 28, 1997

Citations

238 A.D.2d 558 (N.Y. App. Div. 1997)
657 N.Y.S.2d 954

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See Ostuni v. East Rockaway Village Tavern, Inc., 238 A.D.2d 558 [2d Dept. 2007].…