ROURK v. MENORAH CAMPUS INC PLLC (2004)

Supreme Court, Appellate Division, Fourth Department, New York.

John O'ROURK, as Executor of the Estate of Ruth Haynes-Brown, Deceased, Plaintiff-Appellant, v. MENORAH CAMPUS, INC., Doing Business as The Harry and Jeanette Weinberg Campus, and Western New York Physical and Occupational Therapy Group, PLLC, Defendants-Respondents.

Decided: December 30, 2004

PRESENT: PIGOTT, JR., P.J., GREEN, KEHOE, SMITH, AND HAYES, JJ.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff-Appellant. Hurwitz & Fine, P.C., Buffalo (Scott C. Billman of Counsel), for Defendant-Respondent Menorah Campus, Inc., doing business as The Harry and Jeanette Weinberg Campus. Thorn Gershon Tymann and Bonanni, LLP, Albany (Carol A. Moore of Counsel), for Defendant-Respondent Western New York Physical and Occupational Therapy Group, PLLC.

In this action maintained by plaintiff to recover damages for personal injuries sustained by his decedent in a trip and fall on defendants' premises, Supreme Court properly granted defendants' respective motion and cross motion for summary judgment dismissing the complaint and cross claims. Defendants established their entitlement to judgment as a matter of law by demonstrating that the rubber mat on which decedent tripped and fell was not in a defective or unreasonably dangerous condition (see Zalko v. Sunrise Adult Health Care Ctr., 7 A.D.3d 616, 617, 776 N.Y.S.2d 594; Matone v. DGM Partners Rye Ltd. Partnership, 6 A.D.3d 585, 586, 774 N.Y.S.2d 814; Jang Hee Lee v. Sung Whun Oh, 3 A.D.3d 473, 474, 771 N.Y.S.2d 134). In opposition to the motion and cross motion, plaintiff failed to raise a triable issue of fact whether there existed a dangerous or defective condition on the premises (see Zalko, 7 A.D.3d at 616, 776 N.Y.S.2d 594).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM:

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