| Moore v Ortolano |
| 2010 NY Slip Op 08473 [78 AD3d 1652] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| Vanessa Moore, Appellant, v Michael Ortolano, Respondent, et al.,Defendant. |
—[*1] Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered July15, 2009 in a personal injury action. The order granted the motion of defendant Michael Ortolano forsummary judgment dismissing the amended complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when shefell from the second-story porch of the apartment that she and her husband rented from defendants. Theaccident occurred when the porch railing collapsed while plaintiff and her husband were leaning againstit, causing them to fall to the ground, and plaintiff alleged that defendants had actual or constructivenotice of the defective condition of the porch railing and failed to maintain it in a proper manner.Supreme Court properly granted the motion of Michael Ortolano (defendant) seeking summaryjudgment dismissing the amended complaint against him. In support of the motion, defendant submittedthe deposition testimony of plaintiff and her husband, both of whom acknowledged that they lived in theapartment for approximately four years prior to the accident and were unaware of any problems withthe porch railing. Defendant also submitted evidence establishing that he had received no complaintswith respect to the condition of the railing. We conclude that defendant thereby met his initial burden ofestablishing that he lacked actual or constructive notice of any alleged defect in the railing (see generally Reynolds v Knibbs, 73 AD3d1456 [2010]), and that plaintiff failed to raise a triable issue of fact to defeat the motion (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We further conclude thatdefendant met his burden of establishing that he properly maintained the porch, including the railing, andplaintiff failed to raise an issue of fact (see generally id.).
Plaintiff further contends that notice to defendant was not required because the doctrine of res ipsaloquitur applies. We reject that contention. The doctrine of res ipsa loquitur does not apply herebecause, inter alia, defendant was not in exclusive control of the instrumentality that allegedly causedplaintiff's injuries, i.e., the porch railing (see Kambat v St. Francis Hosp., 89 NY2d 489, 494[1997]; Brink v Anthony J. Costello & SonDev., LLC, 66 AD3d 1451, 1453 [2009]). As noted, plaintiff and her husband were tenantsof the apartment for approximately four years prior to the [*2]accident,and defendant established that he was an "out-of-possession landlord[ ] who did not exercise exclusivecontrol over" the porch and its railing (Richardson v Simone, 275 AD2d 576, 578 [2000]).Present—Martoche, J.P., Lindley, Sconiers, Pine and Gorski, JJ.