This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff(s) attorney: Taub & Marder.
Defendant(s) attorney: Barry McTiernan.
Ute Wolff Lally, J.
In this action, the plaintiffs seek to recover money damages for personal injuries plaintiff James Haring suffered when the plastic chair he was sitting on while dining with his wife and son on the outdoor deck at the Still Waters restaurant on July 25, 2005, suddenly collapsed. Still Waters commenced a third-party action against Grosfillex, which is alleged to have designed, manufactured and distributed the chair, and Home Depot USA, Inc., which is alleged to have distributed and sold the chair, which has been discontinued.
The defendant seeks summary judgment dismissing the complaint on the ground that it neither created nor had actual or constructive notice of the defective condition that caused the plaintiff's injuries.
"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Sheppard-Mobley v King, 10 A.D.3d 70, 74, aff'd. as mod., 4 N.Y.3d 627, citing Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact ( Alvarez v Prospect Hosp., supra, at p. 324). The evidence presented by a party opposing summary judgment must be accepted as true and it must be given the benefit of every reasonable inference (See, Demishick v Community Housing Management Corp., 34 A.D.3d 518, citing Secof v Greens Condominium, 158 A.D.2d 591).
For the defendant to be liable, it must have either created or had actual or constructive notice of the defective condition that caused the plaintiff's injuries ( Loiacono v Stuyvesant Bagels, Inc., 29 A.D.3d 537, 538, citing Gordon v. American Museum of Natural History, 67 N.Y.2d 836). A general awareness that a dangerous condition might exist is insufficient ( Loiacono v Stuyvesant Bagels, Inc., supra, at p. 538, citing Piacquado v Recine Realty Corp., 84 N.Y.2d 967). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it" ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836 ,837).
At his examination-before-trial, plaintiff James Haring testified that he had been at Still Waters approximately twenty times during the five years preceding his accident and that Still Waters had always used the same type of chair that collapsed on him. He further testified that he never observed any problems with any of the chairs. Mr. Haring also acknowledged that he had been sitting in the chair for an hour to an hour and fifteen minutes before it collapsed during which time, again, he observed no problems with the chair. He testified that the chair suddenly collapsed. It came apart and the left rear leg and pieces of the seat broke off. He estimated that the chairs broke into approximately ten pieces.
Plaintiff Linda Haring, James Haring's wife, testified similarly at her examination before trial. She testified that she heard a noise when the chair collapsed. She testified that it "sounded like it cracked." She estimated that it broke into six or seven pieces. She testified that after her husband's accident, she looked around the deck and observed that many of the 12-15 chairs she looked at had visible cracks.
David Yearick, Vice President of Manufacturing and Logistics at Grosfillex, testified at his examination before trial that commercial chairs are designed for outdoor use on ships, at restaurants, hotels, swimming pools, etc. He also testified that residential outdoor chairs are designed for a one hour use in the evenings and a couple of hours on weekends during the summer.
Still Waters' president Dennis Arango testified at his examination before trial, and has now further attested, that there were no prior accidents or complaints regarding the plastic chairs used by the restaurant. In fact, he testified that they were inspected and thoroughly cleaned nearly every night, i.e., four or five times a week. He explained that the legs and bottoms of the chairs were cleaned and inspected, too, and that the chairs were routinely inspected for cracks. He testified that old and ...