| Cerniglia v Loza Rest. Corp. |
| 2012 NY Slip Op 06118 [98 AD3d 933] |
| September 12, 2012 |
| Appellate Division, Second Department |
| Carol Cerniglia et al., Appellants, v Loza Rest. Corp.,Doing Business as Chalet Alpina Restaurant, Respondent. |
—[*1] Fixler & LaGattuta, LLP, New York, N.Y. (Paul F. LaGattuta III of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Queens County (Agate, J.), dated July 5, 2011, which granted thedefendant's motion for summary judgment dismissing the complaint, and (2) a judgment of thesame court entered September 6, 2011, which, upon the order, is in favor of the defendant andagainst them, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendant's motion for summaryjudgment dismissing the complaint is denied, and the order dated July 5, 2011, is modifiedaccordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the intermediate order are broughtup for review and have been considered on the appeal from the judgment (see CPLR5501 [a] [1]).
The plaintiff Carol Cerniglia (hereinafter the injured plaintiff) alleges that on October 2,2008, while dining in the defendant's restaurant in Forest Hills, Queens, the bench upon whichshe was seated collapsed, causing her to sustain personal injuries. The injured plaintiff, with herhusband suing derivatively, commenced this action against the defendant to recover damages fornegligence. The Supreme Court granted the defendant's motion for summary judgmentdismissing the complaint.
The defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating, through the deposition testimony of its owners, that it neither created nor had[*2]actual or constructive notice of the allegedly defectivecondition of the bench (see Gordon v American Museum of Natural History, 67 NY2d836, 837 [1986]; Quinones v FederatedDept. Stores, Inc., 92 AD3d 931, 932 [2012]; Dulgov v City of New York, 33 AD3d 584 [2006]).
In opposition, the plaintiffs raised a triable issue of fact. At their respective depositions, bothplaintiffs testified that immediately after the accident, an unnamed "owner" of the restaurant toldthem that the bench was unsafe and did not provide sufficient support. Viewing the evidence inthe light most favorable to the plaintiffs and resolving all reasonable inferences in their favor (see Pearson v Dix McBride, LLC, 63AD3d 895 [2009]; Boyd v RomeRealty Leasing Ltd. Partnership, 21 AD3d 920 [2005]), the "owner's" alleged admissionto the plaintiffs qualified as an exception to the hearsay rule (see Vaden v Rose, 4 AD3d 468, 469 [2004]; Ferrara vPoranski, 88 AD2d 904 [1982]). Although in their deposition testimony, which the plaintiffsalso submitted as part of their opposition papers, the defendant's owners admitted speaking to theplaintiffs immediately after the accident, both denied making any comments to the injuredplaintiff or anyone in her party regarding a defect in the bench. However, again viewing theevidence in the light most favorable to the plaintiffs and resolving all reasonable inferences intheir favor, the plaintiffs thus raised a triable issue of fact as to whether the defendant had noticeof the existence of the allegedly dangerous condition of the bench. The fact that both of thedefendant's owners denied making any statement immediately after the accident to either of theplaintiffs regarding the condition of the bench merely raised issues of credibility that cannot bedetermined on a motion for summary judgment (see Ferrante v American Lung Assn., 90NY2d 623, 631 [1997]; Brown vKass, 91 AD3d 894, 895 [2012]).
Accordingly, the Supreme Court should have denied the defendant's motion for summaryjudgment dismissing the complaint.
The plaintiffs' remaining contention need not be reached in light of our determination.Dillon, J.P., Balkin, Belen and Chambers, JJ., concur.