| Green v Quincy Amusements, Inc. |
| 2013 NY Slip Op 05188 [108 AD3d 591] |
| July 10, 2013 |
| Appellate Division, Second Department |
| Bernadette Green, Appellant, v QuincyAmusements, Inc., Respondent, et al., Defendant. |
—[*1] Law Offices of John W. Manning, P.C., Tarrytown, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1)an order of the Supreme Court, Westchester County (Murphy, J.), entered November 10,2011, which granted the motion of the defendant Quincy Amusements, Inc., for summaryjudgment dismissing the complaint insofar as asserted against it, and denied her crossmotion for leave to supplement her bill of particulars to allege that the circumstantialevidence permits an inference of the defendants' negligence under the doctrine of res ipsaloquitur, and (2) a judgment of the same court entered November 22, 2011, which, uponthe order, is in favor of the defendant Quincy Amusements, Inc., and against her,dismissing the complaint insofar as asserted against it.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the motion of the defendantQuincy Amusements, Inc., for summary judgment dismissing the complaint insofar asasserted against it is denied, the plaintiff's cross motion for leave to supplement her billof particulars to allege that the circumstantial evidence permits an inference of thedefendants' negligence under the doctrine of res ipsa loquitur is granted, and the orderentered November 10, 2011, is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff allegedly sustained personal injuries inside a movie theater operated bythe defendant Quincy Amusements, Inc. (hereinafter Quincy), due to a dislodged cupholder and armrest piece. In a premises liability case, the defendant property owner whomoves for summary judgment has the initial burden of making a prima facie showing thatit neither created the hazardous condition nor had actual or constructive notice of itsexistence (see Minor v 1265Morrison, LLC, 96 AD3d 1024 [2012]; Alexander v New York City Hous. Auth., 89 AD3d 969,969-970 [2011]; Birnbaum vNew [*2]York Racing Assn., Inc., 57 AD3d 598[2008]). In determining a motion for summary judgment, evidence must be viewed in thelight most favorable to the nonmoving party, and all reasonable inferences must beresolved in favor of the nonmoving party (see Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903[2012]; Boyd v Rome RealtyLeasing Ltd. Partnership, 21 AD3d 920, 921 [2005]). Moreover, the court'sfunction on a motion for summary judgment is not to resolve issues of fact or todetermine matters of credibility but merely to determine whether such issues exist (see Stukas v Streiter, 83 AD3d18, 23 [2011]; Doize vHoliday Inn Ronkonkoma, 6 AD3d 573, 574 [2004]).
Applying these rules to the facts of this case, Quincy failed to establish, as a matterof law, that it did not create or have actual or constructive notice of the allegedlydefective condition that allegedly caused the plaintiff to be injured (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Birnbaum v New YorkRacing Assn., Inc., 57 AD3d at 598-599). A triable issue of fact exists as to when thesubject cup holder and armrest piece was last inspected and whether the alleged defectivecondition of the armrest existed for a sufficient length of time prior to the incident topermit Quincy to remedy it (see Gordon v American Museum of Natural History,67 NY2d 836, 837 [1986]). Accordingly, Quincy's motion for summary judgmentdismissing the complaint insofar as asserted against it should have been denied.
The Supreme Court also should have granted the plaintiff's cross motion for leave tosupplement her bill of particulars to allege that the circumstantial evidence permits aninference of the defendants' negligence under the doctrine of res ipsa loquitur. Since thedoctrine of res ipsa loquitur merely permits an inference arising from the evidence in anegligence case, and since a plaintiff's failure to plead res ipsa loquitur does not forecloseits application on summary judgment or at trial, if warranted by the evidence, thedefendants are not prejudiced by the granting of the cross motion (see Wicks v Leemilt's Petroleum,Inc., 103 AD3d 793, 795 [2013]). Eng, P.J., Dickerson, Hall and Lott, JJ.,concur.