In this action, the plaintiffs seek to recover money damages for personal injuries plaintiff James Haring suffered when the plastic chair he was sitting on while dining with his wife and son on the outdoor deck at the Still Waters restaurant on July 25, 2005, suddenly collapsed. Still Waters commenced a third-party action against Grosfillex, which is alleged to have designed, manufactured and distributed the chair, and Home Depot USA, Inc., which is alleged to have distributed and sold the chair, which has been discontinued.

The defendant seeks summary judgment dismissing the complaint on the ground that it neither created nor had actual or constructive notice of the defective condition that caused the [*2]plaintiff's injuries.

"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Sheppard-Mobley v King, 10 AD3d 70, 74, aff'd. as mod., 4 NY3d 627, citing Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact (Alvarez v Prospect Hosp., supra, at p. 324). The evidence presented by a party opposing summary judgment must be accepted as true and it must be given the benefit of every reasonable inference (See, Demishick v Community Housing Management Corp., 34 AD3d 518, citing Secof v Greens Condominium, 158 AD2d 591).

For the defendant to be liable, it must have either created or had actual or constructive notice of the defective condition that caused the plaintiff's injuries (Loiacono v Stuyvesant Bagels, Inc., 29 AD3d 537, 538, citing Gordon v American Museum of Natural History, 67 NY2d 836). A general awareness that a dangerous condition might exist is insufficient (Loiacono v Stuyvesant Bagels, Inc., supra, at p. 538, citing Piacquado v Recine Realty Corp., 84 NY2d 967). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836 ,837).

At his examination-before-trial, plaintiff James Haring testified that he had been at Still Waters approximately twenty times during the five years preceding his accident and that Still Waters had always used the same type of chair that collapsed on him. He further testified that he never observed any problems with any of the chairs. Mr. Haring also acknowledged that he had been sitting in the chair for an hour to an hour and fifteen minutes before it collapsed during which time, again, he observed no problems with the chair. He testified that the chair suddenly collapsed. It came apart and the left rear leg and pieces of the seat broke off. He estimated that the chairs broke into approximately ten pieces.

Plaintiff Linda Haring, James Haring's wife, testified similarly at her examination before trial. She testified that she heard a noise when the chair collapsed. She testified that it "sounded like it cracked." She estimated that it broke into six or seven pieces. She testified that after her husband's accident, she looked around the deck and observed that many of the 12-15 chairs she looked at had visible cracks.

David Yearick, Vice President of Manufacturing and Logistics at Grosfillex, testified at his examination before trial that commercial chairs are designed for outdoor use on ships, at restaurants, hotels, swimming pools, etc. He also testified that residential outdoor chairs are designed for a one hour use in the evenings and a couple of hours on weekends during the [*3]summer.

Still Waters' president Dennis Arango testified at his examination before trial, and has now further attested, that there were no prior accidents or complaints regarding the plastic chairs used by the restaurant. In fact, he testified that they were inspected and thoroughly cleaned nearly every night, i.e., four or five times a week. He explained that the legs and bottoms of the chairs were cleaned and inspected, too, and that the chairs were routinely inspected for cracks. He testified that old and discolored chairs were regularly discarded. In fact, Mr. Arango testified that he kept approximately a dozen extra chairs on hand as extras.

The defendant has established its entitlement to summary judgment by establishing that it neither created nor had notice of the defective chair, thereby shifting the burden to the plaintiffs to establish the existence of a material issue of fact.

In opposition, the plaintiffs have relied on the expert opinion of Sokoloff who opines that Still Waters' use of outdoor residential chairs which had degraded to an advanced state of structural weakness and possessed cracks which were not visible to the naked eye was negligent. He further opines that Still Waters' use of residential as opposed to commercial chairs was unacceptable and negligent in view of the fact that they were being used on a deck which has slats between the planks and were perpetually exposed to outdoor elements. These things, Sokoloff opines, exacerbated the strain on the chairs. More specifically, he opines that temperature swings and the use of the chairs on slatted decks which did not evenly support them exacerbated the chairs' degradation. Sokoloff also opines that Still Waters had notice of the chair's condition based upon Mrs. Haring's testimony that upon inspection she observed many cracked chairs on the deck.

An expert witness must possess the requisite skill, training, education, knowledge or experience in the area upon which he is called to render an opinion so as to ensure that this opinion is reliable (Behar v Coren, 21 AD3d 1045, 1046, citing Postlethwaite v United Health Services Hospitals, 5 AD3d 892, 895). "A witness may be qualified as an expert based upon long observation, actual experience and/or study'" (Steinbuch v Stern, 2 AD3d 709, 710, quoting McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572, 573). " No precise rule has been formulated and applied as to the exact manner in which such skill and experience must be acquired'" (Steinluch v Stern, supra, at p. 710, quoting Meiselman v Crown Heights Hosp., supra, at p. 398). An expert's opinion may not be received where the expert is not qualified to give the testimony of the type and kind required (Garcia v New York, 104 AD2d 438, aff'd. 65 NY2d 805).

Sokoloff is an engineer who professes to have "expertise in foundations, building structures, marine and heavy construction" and attests to the fact that his experience relates to "geotechnical, foundation, structural and constructability analysis, design and construction staging." These experiences do not qualify Sokoloff to render opinions regarding the use of residential plastic deck furniture in a restaurant setting. Though Sokoloff makes bald reference to having an "in-depth knowledge of strengths and materials for products, including plastic chairs," [*4]he has laid no foundation whatsoever to support that statement. The overwhelming weight of his credentials, including the laundry list of experiences that he has provided by way of his sworn affidavit, hardly support such a conclusion. Indeed, he has described the "projects" he has been involved in as including "long span and suspension bridges, airports, marine structures, mass transit, building and design build efforts," and lists his representative clients as including the NYC School Construction Authority, the NYC Transit Authority, the NYS Department of Transportation. Although his long list of credentials may qualify him to provide expert testimony within some area of expertise, he has failed to set forth any grounds for allowing him to speak outside of his area or to otherwise render an expert opinion as to the use of residential plastic deck furniture in dining establishments such as Still Waters. As such, plaintiffs' expert's opinion must be rejected (See, Nino de Hernandez v Lutheran Medical Center, ___AD3d___, 2007 WL 4246819) (physicist who studied the growth patterns of breast cancer not qualified to render opinion regarding rate of growth of decedent's retroperitoneal sarcoma); Hong v County of Nassau, 139 AD2d 566 (mechanical engineer with experience in safety engineering of vehicles not qualified to testify as to design and development of golf courses and other recreational facilities); Hileman v Schmidt's Garage, Inc., 58 AD2d 1029 (metallurgist not qualified to testify as to dynamics); Molinariu v Conforti & Eisele, Inc., 54 AD2d 1113 (architect not qualified to provide expert opinion regarding temporary lighting system at construction site); Linborg v Lance Camper Manufacturing Corp., 4 Misc 3d 1025(A) (Supreme Court Suffolk Co. 2004) (New York State Department of Labor Inspector not qualified to give expert opinion regarding manufacturing defects in recreational vehicle). In any event, Sokoff's theory is not backed up by an inspection of the subject chair, industry standards or any scientific data. It accordingly fails (See, Leggio v Gearhart, 294 AD2d 543; Romano v Stanley, 90 NY2d 444, citing Amatulli v Delhi Construction Corp., 77 NY2d 525, 533-534, n. 2; Linborg v Lance Camper Manufacturing Corp., supra).

Furthermore, even though plaintiffs' expert has established that commercial chairs are constructed to withstand a 400-pound person for 30 minutes even when tilted and that residential chairs are constructed to withstand only a 300 pound person, the plaintiff weighed only 225 pounds and both he and his wife testified that he did not lean back or rock while seated in the chair, rendering the distinction between commercial and residential chairs irrelevant here.

Nevertheless, Ms. Haring's testimony regarding the condition of the chairs she observed on the deck right after her husband's accident suffices to raise an issue of fact as to whether Still Waters had notice of the chair's deteriorated condition (See, Maguire v Beyer, 31 AD3d 621; Radnay v 1036 Park Corp., 17 AD3d 106).

Furthermore, neither party has addressed the applicability of the res ipsa loquitur doctrine which may apply under the circumstances (Finocchio v Crest Hollow Club at Woodbury, Inc., 184 AD2d 491; see also, Kaiser v Winner Communications, 4 Misc 3d 1010(A) (Supreme Court Kings Co. 2004); Crispo v Art Student League, 180 Misc 2d 54 (Supreme Court Kings Co. 1999); compare, Levinstim v Parker, 27 AD3d 698 and Loiacono v Stuyvesant Bagels, Inc., supra). [*5]

Plaintiffs' request for sanctions pursuant to 22 NYCRR 130-1.1 is denied. A proper application has not been made. CPLR 2214, 2215. In any event, the circumstances do not warrant such relief.

The defendant's motion for summary judgment is denied.

Dated: __________________ _______________________________

J.S.C.