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Ada ZONA and Amedeo Zona, Plaintiffs-Appellants, v. JELD-WEN, INC., and Vava Realty, Inc., Defendants-Respondents. (Action No. 1.)
Ada Zona and Amedeo Zona, Plaintiffs-Appellants, v. Jeld-Wen, Inc., Grossman's Inc., Grossman's Bargain Outlet, Mr. Second's Bargain Outlet and Grossman's Division of Jeld-Wen, Inc., Defendants-Respondents. (Action No. 2.)
Plaintiffs commenced these actions seeking damages for injuries allegedly sustained by plaintiff Ada Zona when she was struck by an automatic door while standing on the door jamb at defendant Mr. Second's Bargain Outlet. Supreme Court properly granted defendants' motion seeking summary judgment dismissing the complaint in action No. 1 and the amended complaint in action No. 2 and denied plaintiffs' cross motion seeking partial summary judgment on the issue of negligence in both actions. Defendants met their initial burden by establishing that they did not create the alleged dangerous condition with respect to the automatic door and that they lacked actual or constructive notice of it, and plaintiffs failed to raise an issue of fact (see Jenkins v. Crossway, 26 A.D.3d 851, 807 N.Y.S.2d 899, lv. dismissed 6 N.Y.3d 892, 817 N.Y.S.2d 626, 850 N.E.2d 673; Fetterly v. Golub Corp., 300 A.D.2d 1056, 1057, 752 N.Y.S.2d 471; Bunce v. Eastman Kodak Co., 299 A.D.2d 909, 749 N.Y.S.2d 759). “Without even the semblance of a foundation based upon facts in the record or personal knowledge, the opinion of plaintiff[s'] expert was purely speculative and, thus, lacked sufficient probative force to constitute prima facie evidence that the [automatic door] was not reasonably safe for its intended use” (Fallon v. Hannay & Son, 153 A.D.2d 95, 102, 550 N.Y.S.2d 135; see Geddes v. Crown Equip. Corp., 273 A.D.2d 904, 905, 709 N.Y.S.2d 770; see generally Romano v. Stanley, 90 N.Y.2d 444, 451, 661 N.Y.S.2d 589, 684 N.E.2d 19).
It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed without costs.
We respectfully dissent in part. In our view, Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint in action No. 1 and the amended complaint in action No. 2. As owners or lessors of the premises in question, where it was known that the public would be invited, defendants had a nondelegable duty to provide the public with a safe means of ingress and egress (see June v. Zikakis Chevrolet, 199 A.D.2d 907, 909, 606 N.Y.S.2d 390). Here, the store manager testified that the automatic door worked on the day of the accident as it had been designed to, in that it closed whether or not a person was standing in the doorway, and that there were no warning signs located at or near the door. “[W]here, as here, the claim is that the ․ design of the premises was defective, [plaintiffs] need not establish that [defendants] had notice of the condition” (Richardson v. Schwager Assoc., 249 A.D.2d 531, 532, 672 N.Y.S.2d 114, citing June, 199 A.D.2d at 909, 606 N.Y.S.2d 390).
Contrary to the view of the majority, we believe that defendants did not meet their burden in the first instance inasmuch as they failed to establish that maintaining the premises with such a door and no warning signs was reasonably safe in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Leone v. County of Monroe, 284 A.D.2d 975, 726 N.Y.S.2d 900). For example, defendants did not establish that the door, as designed, was consistent with industry standards or that it was not feasible to install a door that would not automatically close when a person was in its path (see generally Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204). Because defendants were in total control of the door, we believe the burden did not shift to plaintiffs and therefore any deficiencies in the opinion of plaintiffs' expert are irrelevant. We therefore would modify the order by denying defendants' motion and reinstating the complaint in action No. 1 and the amended complaint in action No. 2.
MEMORANDUM:
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Decided: November 17, 2006
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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