The Fourth Department, over a two-justice dissent, affirmed the grant of summary judgment to defendant restaurant owner. A chair at the restaurant collapsed when plaintiff sat down. The court determined the defendant did not have constructive notice of the condition of the chair and the doctrine of res ipsa loquitur did not apply:
The duty of a property owner to inspect his or her property “is measured by a standard of reasonableness under the circumstances” … . Here, defendant testified that she wipes down the chairs at the end of each day and that, “every month or so,” she performs a “major cleaning” of the restaurant, which includes an inspection of the chairs. In the absence of any prior complaints, incidents, accidents, or any other circumstances that should have aroused defendant’s suspicion that the chairs were defective …, we conclude that plaintiffs failed to raise a triable issue of fact concerning the reasonableness of defendant’s inspection practices, and thus whether defendant had constructive notice of the alleged defective condition of the chair.
We reject plaintiffs’ alternative contention that notice to defendant was not required because the doctrine of res ipsa loquitur applies. That doctrine “does not apply here because, inter alia, defendant was not in exclusive control of the instrumentality that allegedly caused plaintiff’s injuries,” i.e., the chair… . Catalano v Tanner, 1087, 4th Dept 12-27-13