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Tomlinson v. Blue Man Group Corp.

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


May 12, 2009

BURGESS TOMLINSON, APPELLANT,
v.
BLUE MAN GROUP CORP., ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated November 28, 2007, as granted the defendants' motion for summary judgment dismissing the complaint.

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.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, RUTH C. BALKIN and LEONARD B. AUSTIN, JJ.

(Index No. 18321/05)

DECISION & ORDER

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

The plaintiff, a stagehand, allegedly was injured while carrying a heavy stage prop, in a sling, up a flight of stairs in a building purportedly owned and/or maintained by the defendants. The sling was comprised of a stick and a chain, the latter securing the stage prop. The plaintiff supported the back end of the stick on his right shoulder, while a co-worker similarly supported the front end of the stick. After the plaintiff commenced the present action to recover damages for personal injuries, the defendants moved for summary judgment dismissing the complaint. At his deposition, the plaintiff testified that he was "looking up" as he ascended the stairway, that he "misstepped a little bit," and that he subsequently experienced a sharp pain in his ankle.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff's injuries were not proximately caused by any negligence on their part (see Denicola v Costello, 44 AD3d 990). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

MASTRO, J.P., COVELLO, BALKIN and AUSTIN, JJ., concur.

20090512

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