ROVEGNO v. CHURCH OF THE ASSUMPTION

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

Rose ROVEGNO, appellant, v. CHURCH OF THE ASSUMPTION, respondent.

Decided: January 31, 2000

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO and HOWARD MILLER, JJ. Philip J. Fitzpatrick, P.C., Staten Island, N.Y., for appellant. Hoey, King, Toker & Epstein, New York, N.Y. (Joseph A. Patella of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Mastro, J.), entered October 20, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff exited the rear of the defendant church and found herself locked inside the parking lot.   She reached through the bars of a mechanical gate to place a key in the lock on the outside of the gate, and the gate slid open, injuring her arm.   The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.

 “A landowner has a duty to exercise reasonable care in maintaining his property in a safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property” (Kurshals v. Connetquot Cent. School Dist., 227 A.D.2d 593, 643 N.Y.S.2d 622;  see also, Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868;  Fellis v. Old Oaks Country Club, 163 A.D.2d 509, 558 N.Y.S.2d 183).  “There is, however, no duty to warn against a condition which is readily observable or an extraordinary occurrence, which ‘would not suggest itself to a reasonably careful and prudent person as one which should be guarded against’ ” (Kurshals v. Connetquot Cent. School Dist., supra, at 594, 643 N.Y.S.2d 622, quoting Fellis v. Old Oaks Country Club, supra, at 511, 558 N.Y.S.2d 183).

 The evidence presented by the defendant established that the accident was the result of the plaintiff's misuse of the gate, which was an extraordinary occurrence that need not have been guarded against (see, Kurshals v. Connetquot Central School Dist., supra;  Freeman v. Cobos, 240 A.D.2d 698, 659 N.Y.S.2d 424;  Jackson v. Supermarkets Gen. Corp., 214 A.D.2d 650, 625 N.Y.S.2d 290).   The conclusory statements of the plaintiff's expert based on “established principles of machine guarding and safety engineering” were insufficient to show that the subject gate did not conform to the relevant industry safety standards (see, Finguerra v. Conn, 252 A.D.2d 463, 676 N.Y.S.2d 154;  Ambrosio v. South Huntington Union Free School Dist., 249 A.D.2d 346, 671 N.Y.S.2d 110).   Moreover, the plaintiff had used the key to open the gate numerous times without incident, and she offered no evidence of similar accidents involving the gate.   Under the circumstances, the Supreme Court properly granted the defendant's motion for summary judgment.

MEMORANDUM BY THE COURT.

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