PALMER v. BARNES NOBLE BOOKSELLERS INC (2006)

Plaintiff commenced this negligence action to recover damages for injuries sustained by her daughter when her daughter's finger was pinched in the space between a closing door and its door jamb on defendant's premises.   Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint.   Defendant met its initial burden by establishing that the door and door jamb did not constitute an unreasonably dangerous condition (see Swan v. Eastman Kodak Co., 16 A.D.3d 1098, 1099, 790 N.Y.S.2d 897;  Tedesco v. Nowak, 294 A.D.2d 911, 912, 742 N.Y.S.2d 461, lv. denied 98 N.Y.2d 610, 749 N.Y.S.2d 2, 778 N.E.2d 553), and plaintiff failed to raise a question of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).  “The affidavit of ․ plaintiff['s] expert did not sufficiently identify any specific industry standard upon which he relied in regard to the [door], nor did [it] supply any specific statutory or building code violations” (Veccia v. Clearmeadow Pistol Club, 300 A.D.2d 472, 472, 752 N.Y.S.2d 84).   The affidavit “was thus speculative and not sufficiently probative to defeat defendant's motion for summary judgment” (Baehre v. Sagamore Resort Hotel, Inc., 4 A.D.3d 810, 811, 771 N.Y.S.2d 434;  see Torres v. West St. Realty Co., 21 A.D.3d 718, 721, 800 N.Y.S.2d 683, lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241;  Cicero v. Selden Assoc., 295 A.D.2d 391, 392, 743 N.Y.S.2d 551;  see generally Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68).   We therefore reverse the order, grant defendant's motion for summary judgment, and dismiss the complaint.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.

MEMORANDUM: