Hunt v. Kostarellis

Appellate Division of the Supreme Court of New York

Hunt v. Kostarellis

27 A.D.3d 1178, 810 N.Y.S.2d 765

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

DecidedMarch 17, 2006

StatusPublished

This text of 27 A.D.3d 1178 (Hunt v. Kostarellis) 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

Hunt v. Kostarellis, 27 A.D.3d 1178, 810 N.Y.S.2d 765 (N.Y. Ct. App. 2006).

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Opinion

Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered February 18, 2005 in a personal injury action. The order denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell in defendant’s restaurant. We agree with defendant that Supreme Court erred in denying his motion for summary judgment dismissing the complaint. Defendant established his entitlement to judgment as a matter of law by submitting the deposition testimony of a waitress who testified that the 80-year-old plaintiff tripped over his own feet as he walked to the salad bar. Although in opposition to the motion plaintiff submitted his deposition testimony in which he testified that he fell when his foot became caught [1179]*1179on the chair of another restaurant patron who had moved his chair in order to stand, plaintiff did not thereby raise an issue of fact whether a dangerous condition existed at defendant’s restaurant and, if so, whether defendant had actual or constructive notice of that dangerous condition (see George v Ponderosa Steak House, 221 AD2d 710 [1995]; see generally Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski, Smith and Pine, JJ.

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Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered February 18, 2005 in a personal injury action. The order denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell in defendant’s restaurant. We agree with defendant that Supreme Court erred in denying his motion for summary judgment dismissing the complaint. Defendant established his entitlement to judgment as a matter of law by submitting the deposition testimony of a waitress who testified that the 80-year-old plaintiff tripped over his own feet as he walked to the salad bar. Although in opposition to the motion plaintiff submitted his deposition testimony in which he testified that he fell when his foot became caught [1179]*1179on the chair of another restaurant patron who had moved his chair in order to stand, plaintiff did not thereby raise an issue of fact whether a dangerous condition existed at defendant’s restaurant and, if so, whether defendant had actual or constructive notice of that dangerous condition (see George v Ponderosa Steak House, 221 AD2d 710 [1995]; see generally Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski, Smith and Pine, JJ.

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Bluebook (online)

27 A.D.3d 1178, 810 N.Y.S.2d 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunt-v-kostarellis-nyappdiv-2006.

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