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Alexander v. Rum Point Tavern

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


May 12, 2009

JUSTIN ALEXANDER, RESPONDENT,
v.
RUM POINT TAVERN, INC., A/K/A RHUMBLINE RESTAURANT, ET AL., APPELLANTS, ET AL., DEFENDANT.

In an action to recover damages for personal injuries, the defendant Rum Point Tavern, Inc., a/k/a Rhumbline Restaurant, appeals, as limited by its brief, and the defendant Port Partners, Inc., separately appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated March 11, 2008, as denied their separate motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., FRED T. SANTUCCI, ANITA R. FLORIO and ARIEL E. BELEN, JJ.

(Index No. 24302/04)

DECISION & ORDER

ORDERED that the order is affirmed, with one bill of costs.

Contrary to the appellants' contentions, they failed to satisfy their burden of establishing, prima facie, that the complained-of condition was not defective, or that they had no notice of a defective condition (see Kucevic v Three Park Ave. Bldg. Co., L.P., 55 AD3d 792; Kucera v Waldbaums Supermarkets, 304 AD2d 531; cf. Mansfield v Dolcemascolo, 34 AD3d 763). The deposition testimony of both appellants' principals demonstrates that each appellant had knowledge of the manner in which the complained-of condition was constructed.

The appellants' remaining contentions are without merit.

PRUDENTI, P.J., SANTUCCI, FLORIO and BELEN, JJ., concur.

20090512

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