Enza Fontana, plaintiff-respondent, v. LLC (2010)

Argued-November 30, 2009

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated October 21, 2008, as denied its cross motion for summary judgment dismissing the complaint and the counterclaim by the third-party defendant, in effect, for contribution, and the third-party defendant cross-appeals from so much of the same order as denied his motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is reversed, on the law, with one bill of costs to the defendant third-party plaintiff and the third-party defendant, the third-party defendant's motion for summary judgment dismissing the third-party complaint is granted, and the defendant third-party plaintiff's cross motion for summary judgment dismissing the complaint and the third-party counterclaim is granted.

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” (Lezama v. 34-15 Parsons Blvd., LLC, 16 AD3d 560, 560;  see Bodden v. Mayfair Supermarkets, 6 AD3d 372, 373).   Here, the evidence showed that the door that closed on the plaintiff's foot did not constitute a defective or dangerous condition.   The plaintiff acknowledged in her deposition testimony that she had worked at Card Corner II for about two years, and during that time had used the door every day without incident, and had never taken any special precautions while holding it.   Further, she had never complained about the door before the accident, nor, to her knowledge, had anyone else ever complained about it.   This evidence was sufficient to establish a prima facie case that the door was not defective (see Maldonado v. Su Jong Lee, 278 A.D.2d 206, 207;  see also DeCarlo v. Village of Dobbs Ferry, 36 AD3d 749, 750;  Aquila v. Nathan's Famous, 284 A.D.2d 287, 288).

In opposition to RHC's motion, the plaintiff failed to raise a triable issue of fact.   Contrary to the plaintiff's contention, it cannot be inferred that the door was defective or improperly maintained merely because it could close fast enough, or hard enough, to cause the plaintiff's injuries (see DeCarlo v. Village of Dobbs Ferry, 36 AD3d at 750;  Lezama v. 34-15 Parsons Blvd, LLC, 16 AD3d at 561;  Hunter v. Riverview Towers, 5 AD3d 249, 250).

Further, contrary to the plaintiff's contention, the doctrine of res ipsa loquitur is not applicable here.   The evidence failed to show either that the accident was “of a kind which ordinarily does not occur in the absence of someone's negligence,” or that RHC was in exclusive control of the premises (Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226).   Accordingly, the Supreme Court should have granted RHC's cross motion for summary judgment.

In light of the above determination, Esposito's motion for summary judgment dismissing the third-party complaint also should have been granted (see e.g. Brooks v Maintenance Serv. Resources, Inc., 44 AD3d 887, 889).

SKELOS, J.P., DICKERSON, ENG and SGROI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court