Blackmon v. Fay's Inc.

Appellate Division of the Supreme Court of New York

Blackmon v. Fay's Inc.

254 A.D.2d 719, 678 N.Y.S.2d 227, 1998 N.Y. App. Div. LEXIS 10392

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 2, 1998

StatusPublished

Cited by2 cases

This text of 254 A.D.2d 719 (Blackmon v. Fay's Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blackmon v. Fay's Inc., 254 A.D.2d 719, 678 N.Y.S.2d 227, 1998 N.Y. App. Div. LEXIS 10392 (N.Y. Ct. App. 1998).

Pincite

Opinion

Order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she [720]*720sustained when she cut her foot on a piece of metal protruding from the bottom of a display case in defendant’s store. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint and plaintiffs cross motion for partial summary judgment on the issue of liability. Defendant failed to sustain its burden of establishing as a matter of law that it did not have actual or constructive notice of the dangerous condition that caused plaintiffs injury; therefore, the motion was properly denied notwithstanding any inadequacy in the opposing papers (see, Ayotte v Gervasio, 81 NY2d 1062; Alvarez v Prospect Hosp., 68 NY2d 320, 324). With respect to the cross motion, plaintiff failed to sustain her initial burden of establishing as a matter of law that defendant created the condition or had actual or constructive notice of it (see generally, Mercer v City of New York, 88 NY2d 955). In support of the cross motion, plaintiff submitted the affidavit of a friend who was with her at the time of the accident. The friend stated that, after the accident, a store employee informed him and plaintiff that “they had had problems like this before”. That hearsay statement does not establish plaintiffs entitlement to judgment as a matter of law.

Contrary to plaintiff’s assertion, the doctrine of res ipsa loquitur is not applicable because the element of exclusive control is lacking (see, Ruggiero v Waldbaums Supermarkets, 242 AD2d 268; Meegan v Westbury Prop. Inv. Co., 234 AD2d 433; Fleischer v Melmarkets, Inc., 174 AD2d 647, 648). We have examined plaintiff’s remaining argument and conclude that it is without merit. (Appeals from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.) Present — Denman, P. J., Green, Pigott, Jr., Callahan and Boehm, JJ.

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Order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she [720]*720sustained when she cut her foot on a piece of metal protruding from the bottom of a display case in defendant’s store. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint and plaintiffs cross motion for partial summary judgment on the issue of liability. Defendant failed to sustain its burden of establishing as a matter of law that it did not have actual or constructive notice of the dangerous condition that caused plaintiffs injury; therefore, the motion was properly denied notwithstanding any inadequacy in the opposing papers (see, Ayotte v Gervasio, 81 NY2d 1062; Alvarez v Prospect Hosp., 68 NY2d 320, 324). With respect to the cross motion, plaintiff failed to sustain her initial burden of establishing as a matter of law that defendant created the condition or had actual or constructive notice of it (see generally, Mercer v City of New York, 88 NY2d 955). In support of the cross motion, plaintiff submitted the affidavit of a friend who was with her at the time of the accident. The friend stated that, after the accident, a store employee informed him and plaintiff that “they had had problems like this before”. That hearsay statement does not establish plaintiffs entitlement to judgment as a matter of law.

Contrary to plaintiff’s assertion, the doctrine of res ipsa loquitur is not applicable because the element of exclusive control is lacking (see, Ruggiero v Waldbaums Supermarkets, 242 AD2d 268; Meegan v Westbury Prop. Inv. Co., 234 AD2d 433; Fleischer v Melmarkets, Inc., 174 AD2d 647, 648). We have examined plaintiff’s remaining argument and conclude that it is without merit. (Appeals from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.) Present — Denman, P. J., Green, Pigott, Jr., Callahan and Boehm, JJ.

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Bluebook (online)

254 A.D.2d 719, 678 N.Y.S.2d 227, 1998 N.Y. App. Div. LEXIS 10392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackmon-v-fays-inc-nyappdiv-1998.

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