SALINAS v. DORRIAN RESTAURANT BAR (2022)

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about March 9, 2021, which denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.

Plaintiff, a customer at a restaurant operated by defendant Dorrian's Restaurant Bar, was allegedly injured when a plywood panel came loose from a wall inside the restaurant and struck her on the head.

The court providently exercised its discretion in considering plaintiff's motion on the merits despite its tardiness. Plaintiff demonstrated good cause based on the death of the managing partner of the law firm was representing her, as that partner was one of the attorneys handling her case (see Freire-Crespo v. 345 Park Ave. L.P., 122 A.D.3d 501, 502, 998 N.Y.S.2d 3 [1st Dept. 2014]).

Nevertheless, plaintiff failed to sustain her initial burden of demonstrating as a matter of law that defendants’ negligence in securing the panel was a proximate cause of her injuries, as the record contains no testimony or photographs establishing how the panel was affixed to the wall (see McNally v. Sabban, 32 A.D.3d 340, 341, 820 N.Y.S.2d 260 [1st Dept. 2006]). Although plaintiff's expert opined that the panel detached because it was improperly secured with a wood screw, his opinion was speculative, since none of the photographs taken on the night of the accident shed light on how the wood panel was secured, nor do they show holes in the wall or in the panel where a screw would have been placed. Indeed, the expert based his opinion on the mere presence in the photograph of a wood screw, which he stated was “evidently” used to secure the panel to the building structure.

Moreover, plaintiff failed to establish that defendants were aware that the panel was loose and could detach from the wall. Nor did plaintiff establish that a reasonable inspection would have revealed a potentially dangerous condition (see Bentley v. All-Star, Inc., 179 A.D.3d 618, 118 N.Y.S.3d 99 [1st Dept. 2020]; Hayes v. Riverbend Hous. Co., Inc., 40 A.D.3d 500, 836 N.Y.S.2d 589 [1st Dept. 2007], lv denied 9 N.Y.3d 809, 844 N.Y.S.2d 784, 876 N.E.2d 513 [2007]).

We have considered plaintiff's remaining contentions and find them unavailing.