RAIMONDO v. ST ANDREW ROMAN CATHOLIC CHURCH SOCIETY OF TOWN OF TONAWANDA

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Supreme Court, Appellate Division, Fourth Department, New York.

Stella R. RAIMONDO and Joseph Raimondo, Appellants, v. ST. ANDREW'S ROMAN CATHOLIC CHURCH SOCIETY OF the TOWN OF TONAWANDA, Respondent.

Decided: February 04, 1998

Before PINE, J.P., and HAYES, WISNER, BOEHM and FALLON, JJ. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria by John Collins, Buffalo, for Plaintiffs-Appellants. Chelus, Herdzik & Speyer, P.C. by John Condren, Buffalo, for Defendant-Respondent.

 Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint.   Stella R. Raimondo (plaintiff) was standing on a concrete pad outside defendant's church hall after a bingo game.   She was knocked to the ground by a door that was opened from inside the church hall;  she sustained a broken ankle that required surgery.   The door that hit plaintiff had no window and had a wider sweep than the concrete pad on which she was standing.   Although defendant met its initial burden, plaintiffs presented evidentiary proof in admissible form sufficient to raise an issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   They submitted an affidavit of a certified property and shopping center manager, who concluded after viewing and measuring the area that the lack of a code-approved window in the door and the lack of warning signs or lines created an unsafe and hazardous condition.   Contrary to defendant's contention, that affidavit was not entirely conclusory (cf., Bouter v. Durand-Wayland, Inc., 221 A.D.2d 902, 634 N.Y.S.2d 597).   The property and shopping center manager referred to custom and practice (cf., Wessels v. Service Mdse., 187 A.D.2d 837, 589 N.Y.S.2d 971), and his opinion is based upon knowledge acquired through his personal professional experience (see, Romano v. Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589, 684 N.E.2d 19).   Additionally, plaintiffs provided the hearsay statement of the woman who opened the door, which statement may be characterized as an excited utterance and may, therefore, be admissible at trial (see generally, Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307, 311-312, 338 N.Y.S.2d 882, 291 N.E.2d 129;  Arnold Herstand & Co. v. Gallery:  Gertrude Stein, Inc., 211 A.D.2d 77, 82-83, 626 N.Y.S.2d 74).

 We reject defendant's argument that there was no duty to warn because the defect, if any, was obvious and apparent (see, Morgan v. Genrich, 239 A.D.2d 919, 659 N.Y.S.2d 638).

Order unanimously reversed on the law without costs, motion denied and complaint reinstated.

MEMORANDUM: