An upstate appeals court has split 3-2 in tossing out a lawsuit brought by a restaurant patron who was allegedly injured when the chair he was sitting on collapsed. Catalano v. Tanner, 1087/13, turned on whether the owner of Dan’s Restaurant in Erie County had either constructive or actual knowledge that the chair was defective.

A majority of the Appellate Division, Fourth Department, panel said the plaintiff failed to raise a triable issue, reversing Supreme Court Justice James Dillon (See Profile), who had denied a defense motion for summary dismissal. “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,” the court said in a memorandum by justices Nancy Smith (See Profile), Erin Peradotto (See Profile) and Edward Carni (See Profile).

The majority also rejected the patron’s alternate res ipsa loquitur argument.

Justices Joseph Valentino (See Profile) and Gerald Whalen (See Profile) dissented, arguing that “the record is devoid of any evidence of the nature of the defect that caused the chair leg to separate from the seat, and any evidence indicating whether the defect was hidden or observable.”

Laurence Behr of Bath Sullivan Behr in Buffalo represented the defendants. The plaintiff was represented by Jacob Piorkowski of Shaw & Shaw in Hamburg.