Velez v. Our Lady of Victory Church ( 1985 )

— In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Nassau County (Becker, J.), dated May 6,1983, which dismissed the complaint at the close of plaintiffs’ case at a jury trial on the issue of liability only.

Order affirmed, without costs or disbursements.

On October 15,1974, the then seven-year-old plaintiff lost her balance while reaching to pick up a dropped pencil. She fell as her school desk toppled over and landed on her fingers. At trial, the complaint was dismissed at the close of the plaintiffs’ case for failure to establish actual or constructive notice to the defendant school of the desk’s alleged propensity to tip over as testified to by a professional engineer. On this record, we can find no evidence which would warrant an inference that the defendants had any notice, actual or constructive, that the desks were defective. Accordingly, plaintiffs failed to establish a prima facie case (cf. DeGeorge v City of New York, 51 AD2d 991). Mollen, P. J., Titone, Lazer and Thompson, JJ., concur.