Hardesty v Slice of Harlem, II, LLC

Hardesty v Slice of Harlem, II, LLC 2010 NY Slip Op 09006 [79 AD3d 472] December 7, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Mark Hardesty, Appellant,
v
Slice of Harlem, II, LLC, Respondent.

—[*1] Scott A. Wolinetz, P.C., New York (Scott A. Wolinetz of counsel), for appellant.

Lewis, Brisbois, Bisgaard & Smith, LLP, New York (Gregory S. Katz of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 17, 2009, which, in an action for personal injuries allegedly sustained when the chair in which plaintiff was sitting collapsed causing him to hit his head against the wall, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion properly found that plaintiff failed to present triable issues of fact for application of the theory of res ipsa loquitur. The record is devoid of evidence that defendant's control of the chair, located in a restaurant open to the public where innumerable patrons had access to the chair, was sufficiently exclusive "to fairly rule out the chance that the defect . . . was caused by some agency other than defendant's negligence" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 228 [1986]; see Loiacono v Stuyvesant Bagels, Inc., 29 AD3d 537 [2006]; Rivera-Emerling v M. Fortunoff of Westbury Corp., 281 AD2d 215, 217 [2001]). Concur—Tom, J.P., Andrias, Sweeny, DeGrasse and RomÁn, JJ.