| Warren v Ellis |
| 2009 NY Slip Op 03232 [61 AD3d 1351] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| John J. Warren, Appellant, v Lawrence R. Ellis, III, et al., asTrustees under the Will of Lawrence R. Ellis, Jr., Dated December 23, 1986, et al.,Respondents. |
—[*1] Law Offices of Lawrence M. Rubin, Buffalo (Destin C. Santacrose of counsel), fordefendants-respondents Lawrence R. Ellis, III, William Carl Ellis, Christine A. Kapakos andLillian D. Ellis, as Trustees under the Will of Lawrence R. Ellis, Jr., Dated December 23, 1986and the Trust under the Will of Lawrence R. Ellis, Jr., Dated December 23, 1986. Underberg & Kessler LLP, Rochester (Elizabeth A. Cordello of counsel), fordefendants-respondents Finger Lakes Book Company and All about Books, LLC.
Appeal from an order of the Supreme Court, Ontario County (William F. Kocher, A.J.),entered January 8, 2008 in a personal injury action. The order granted the motions of defendantsfor summary judgment dismissing the amended complaint and denied plaintiff's cross motion forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion of defendants Finger Lakes Book Company and All About Books, LLC andreinstating the amended complaint against those defendants and as modified the order is affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen an 8-inch-by-12-inch piece of concrete stair fell out from beneath his feet as he descendeda staircase at a warehouse owned by trustees under the will of Lawrence R. Ellis, Jr., and thetrust under that will (collectively, owners), and leased by defendants Finger Lakes BookCompany and All About Books, LLC (collectively, tenants). Supreme Court granted the motionsof the owners and the tenants for summary judgment dismissing the amended complaint againstthem, and denied plaintiff's cross motion for summary judgment. We conclude that the courterred in granting the motion of the tenants, and we therefore modify the order accordingly. Wenote at the outset that, in view of our decision that the tenants are not entitled to summary [*2]judgment dismissing the amended complaint against them, we neednot address plaintiff's contention concerning the alleged mislabeling of the motion of the tenantsas a cross motion.
Addressing first the motion of the tenants, we conclude that they failed to meet their initialburden on the motion because they failed to establish that they did not create or have actual orconstructive notice of the allegedly defective stairs (see generally Wesolek v Jumping Cow Enters., Inc., 51 AD3d1376, 1377 [2008]). In support of their motion, they submitted the deposition testimony ofplaintiff in which he testified that, on the day of his accident, he walked up and down the stairssix times without incident and neither observed nor registered a complaint with respect to anybreaks or problems with the stairs. They also submitted the deposition testimony of an individualwho has an ownership interest in defendant All About Books, LLC, which in turn ownsdefendant Finger Lakes Book Company, that plaintiff's accident was the only incident that hecould recall that involved a piece of the stair breaking off. Those submissions fail to establish thetenants' entitlement to judgment as a matter of law (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]; Wesolek, 51 AD3d at 1377).
We further conclude, however, that the court properly granted the motion of the owners forsummary judgment dismissing the complaint against them inasmuch as by their submissions insupport of their motion they established their entitlement to judgment as a matter of law (seegenerally Wesolek, 51 AD3d at 1377), and plaintiff failed to raise a triable issue of fact(see generally Zuckerman, 49 NY2d at 562). Contrary to plaintiff's contention, thedoctrine of res ipsa loquitur does not apply to this case with respect to the owners. Indeed, therecord does not support plaintiff's allegation that the owners' control of the concrete stairs at thewarehouse was "sufficiently exclusive 'to fairly rule out the chance that the defect. . . was caused by some agency other than [the owners'] negligence' " (Chini vWendcentral Corp., 262 AD2d 940 [1999], lv denied 94 NY2d 752 [1999], quotingDermatossian v New York City Tr. Auth., 67 NY2d 219, 228 [1986]).Present—Scudder, P.J., Smith, Peradotto, Carni and Green, JJ.