CONNOR v. CIRCUIT CITY STORES INC (2005)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of (1) an order of the Supreme Court, Westchester County (DiBlasi, J.), entered August 5, 2003, as granted that branch of the motion of the defendant Besam Automated Entrance Systems, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and (2) an order of the same court entered September 18, 2003, as granted that branch of the motion of the defendant Circuit City Stores, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and denied the plaintiff's cross motion for leave to serve a supplemental bill of particulars on the defendant Circuit City Stores, Inc.

ORDERED that the order entered August 5, 2003, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order entered September 18, 2003, is reversed insofar as appealed from, on the law, that branch of the motion of the defendant Circuit City Stores, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is denied, the complaint is reinstated against that defendant, the cross motion is granted, and the supplemental bill of particulars is deemed served on the defendant Circuit City Stores, Inc.;   and it is further,

ORDERED that one bill of costs is awarded to the defendant Besam Automated Entrance Systems, Inc., payable by the plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendant Circuit City Stores, Inc.

The plaintiff was injured when she was struck by an electronically-controlled door while entering the premises owned by the defendant Circuit City Stores, Inc. (hereinafter Circuit City).   The defendant Besam Automated Entrance Systems, Inc. (hereinafter Besam), installed the door, and performed repairs only at Circuit City's request.   Besam performed repairs on the subject door six months before the date of the plaintiff's accident.

 Besam established its prima facie entitlement to summary judgment by demonstrating that it neither created the defective condition nor had actual or constructive notice thereof (see Raffile v. Tower Air, 264 A.D.2d 721, 695 N.Y.S.2d 116).   In opposition, the affidavit submitted by the plaintiff's expert was speculative and conclusory, and thus, insufficient to raise a triable issue of fact (see Grob v. Kings Realty Assoc., 4 A.D.3d 394, 395, 771 N.Y.S.2d 384;  Picerno v. New York City Tr. Auth., 4 A.D.3d 349, 350, 771 N.Y.S.2d 549).   Therefore, the Supreme Court properly granted summary judgment to Besam.

 Circuit City also established its prima facie entitlement to summary judgment by demonstrating that it did not create the defective condition or have actual or constructive notice of such condition (see McKeon v. Town of Oyster Bay, 292 A.D.2d 574, 739 N.Y.S.2d 739).   However, in opposition, the plaintiff raised a triable issue of fact.

 To invoke the doctrine of res ipsa loquitur, the event (1) must be of a kind which ordinarily does not occur in the absence of someone's negligence;  (2) must be caused by an agency or instrumentality within the exclusive control of the defendant;  and (3) must not have been due to any voluntary action or contribution on the part of the plaintiff (see Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, 655 N.Y.S.2d 844, 678 N.E.2d 456;  see Allen v. Thompson Overhead Door Co., 3 A.D.3d 462, 465, 771 N.Y.S.2d 521;  cf. Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200).   Circuit City argues that the second element of the res ipsa loquitur doctrine is inapplicable to this case.   However, contrary to Circuit City's contention, the plaintiff raised an issue as to whether control of the presence sensors on the subject door by Circuit City was of “sufficient exclusivity to fairly rule out the chance that the defect was caused by some agency other than [Circuit City's] negligence” (Dermatossian v. New York City Tr. Auth., supra at 228, 501 N.Y.S.2d 784, 492 N.E.2d 1200;  see Allen v. Thompson Overhead Door Co., supra at 465, 771 N.Y.S.2d 521;  Morgan v. Solomon, 305 A.D.2d 982, 983, 758 N.Y.S.2d 458).   Thus, the Supreme Court erred in granting Circuit City's motion.

In light of our determination with respect to Circuit City's motion, the Supreme Court should have granted the plaintiff's cross motion for leave to serve a supplemental bill of particulars to include a res ipsa loquitur theory of liability in support of its claim alleging negligence by Circuit City.   Circuit City failed to establish that it would be prejudiced or surprised if leave to serve a supplemental bill of particulars was granted (cf. Dalrymple v. Koka, 295 A.D.2d 469, 744 N.Y.S.2d 427).