Pugliese v. Simonetti

Appellate Division of the Supreme Court of New York

Pugliese v. Simonetti

295 A.D.2d 590, 744 N.Y.S.2d 871, 2002 N.Y. App. Div. LEXIS 6765

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

DecidedJune 24, 2002

StatusPublished

Cited by1 cases

This text of 295 A.D.2d 590 (Pugliese v. Simonetti) 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

Pugliese v. Simonetti, 295 A.D.2d 590, 744 N.Y.S.2d 871, 2002 N.Y. App. Div. LEXIS 6765 (N.Y. Ct. App. 2002).

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Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Joseph, J.), entered May 21, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant established, prima facie, his entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the defendant created or had actual or constructive notice of the allegedly defective boarding seat step, which collapsed when the plaintiff Barbara Pugliese stood on it in an effort to exit the defendant’s motorboat (see Abrams v Powerhouse Gym Merrick, 284 AD2d 487; Teig v Nissequogue Golf Club, 278 AD2d 486).

Additionally, while the failure to plead the doctrine of res ipsa loquitur does not preclude its use if the evidence warrants its application (see Weeden v Armor El. Co., 97 AD2d 197), the Supreme Court properly concluded that the plaintiffs cannot rely upon the doctrine in the instant case (see Raimondi v New York Racing Assn., 213 AD2d 708). Santucci, J.P., Altman, H. Miller and Cozier, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Joseph, J.), entered May 21, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant established, prima facie, his entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the defendant created or had actual or constructive notice of the allegedly defective boarding seat step, which collapsed when the plaintiff Barbara Pugliese stood on it in an effort to exit the defendant’s motorboat (see Abrams v Powerhouse Gym Merrick, 284 AD2d 487; Teig v Nissequogue Golf Club, 278 AD2d 486).

Additionally, while the failure to plead the doctrine of res ipsa loquitur does not preclude its use if the evidence warrants its application (see Weeden v Armor El. Co., 97 AD2d 197), the Supreme Court properly concluded that the plaintiffs cannot rely upon the doctrine in the instant case (see Raimondi v New York Racing Assn., 213 AD2d 708). Santucci, J.P., Altman, H. Miller and Cozier, JJ., concur.

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Bluebook (online)

295 A.D.2d 590, 744 N.Y.S.2d 871, 2002 N.Y. App. Div. LEXIS 6765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pugliese-v-simonetti-nyappdiv-2002.

Opinion

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