Opinion
2001-05372
Argued May 14, 2002.
June 25, 2002.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Joseph, J.), entered May 21, 2001, which granted the defendant's motion for summary judgment dismissing the complaint.
Mintz Schaffer, Freeport, N.Y. (Eugene Schaffer of counsel), for appellants.
Sawits, Andreotta, Nashak, Bianchino Frank, Melville, N.Y. (Michael G. Nashak of counsel), for respondent.
FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, HOWARD MILLER, BARRY A. COZIER, JJ.
ORDERED that the order is affirmed, with costs.
The defendant established, prima facie, his entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the defendant created or had actual or constructive notice of the allegedly defective boarding-seat step, which collapsed when the plaintiff Barbara Pugliese stood on it in an effort to exit the defendant's motorboat (see Abrams v. Powerhouse Gym Merrick, 284 A.D.2d 487; Teig v. Nissequogue Golf Club, 278 A.D.2d 486).
Additionally, while the failure to plead the doctrine of res ipsa loquitur does not preclude its use if the evidence warrants its application (see Weeden v. Armor Elevator Co., 97 A.D.2d 197), the Supreme Court properly concluded that the plaintiffs cannot rely upon the doctrine in the instant case (see Raimondi v. New York Racing Assn., 213 A.D.2d 708).
SANTUCCI, J.P., ALTMAN, H. MILLER and COZIER, JJ., concur.