Acca v. Clemons Props., Inc.

• Decision Date: 27 December 2010
• Docket Number: No. 102925/08.,102925/08.
• Citation: 30 Misc.3d 1205,2010 N.Y. Slip Op. 52304,958 N.Y.S.2d 644
• Parties: Lisa M. ACCA, Plaintiff, v. CLEMONS PROPERTIES, INC., Defendant.
• Court: New York Supreme Court

30 Misc.3d 1205
958 N.Y.S.2d 644
2010 N.Y. Slip Op. 52304

Lisa M. ACCA, Plaintiff,
v.
CLEMONS PROPERTIES, INC., Defendant.

No. 102925/08.

Supreme Court, Richmond County, New York.

Dec. 27, 2010.

James Giannakouros, Brooklyn, NY, Attorney for Plaintiff.

Joseph V. Figliolo, esq, “0f Counsel,” Law offices of Charles J. Siegel, New York, NY, Attorney for Defendant.

KIM DOLLARD, J.

Defendant, Clemons Properties, Inc. (“Clemons”) moves for an Order pursuant to CPLR 3212 granting summary judgment in its favor, dismissing plaintiff's complaint. Plaintiff opposes defendant's motion and cross-moves for summary judgment in her favor.

In the underlying action, plaintiff, Lisa Acca (“Acca”) sues to recover damages for injuries allegedly sustained as a result of an accident that occurred on April 3, 2007 at defendant's premises, 708 Third Avenue, New York, New York. On that date, at approximately 6:00 P.M., plaintiff arrived at the location to drop off a cell phone earpiece to a friend who worked in the building. She successfully dropped off the earpiece, spent about five minutes with her friend in his office and returned to the lobby of the building with the intent to exit the building onto Third Avenue, where her vehicle was parked. While attempting to exit the building, plaintiff was caused to be injured when she came into contact with what she stated in her deposition felt like “a brick wall.” As a result, she suffered injuries to her head, face and nose.

The thrust of defendant's motion is that Acca has failed to set forth a prima facie case of negligence, and has advanced, for the first time in her opposition, a new theory of liability, and Clemons is therefore entitled to summary judgment. Plaintiff refutes defendant's claim in that plaintiff claims that the defendant, in its motion, relies upon an incorrect and inaccurate account as to how the accident occurred.

Defendant's motion is based upon reliance on facts that indicate that plaintiff was injured as a result of being struck by a door as she exited the building. Plaintiff, in her opposition, states that she was injured as the result of walking into a fixed transparent glass panel situated between the exits to the building. At the subject building, one may enter or exit through a center revolving glass door, or through a swinging door located to the right or left of the revolving door. Between the revolving glass door and each of the side swinging doors is a glass panel. Plaintiff now claims that she walked into the glass panel to the right of the revolving door.

Plaintiff further alleges, relying upon an expert affidavit, attached to her papers, by Nicholas Bellizzi, a Professional Engineer, that the defendant was negligent, inter alia, in failing to mark the glass panel, creating an illusion of space, and violating various building code and statutory mandates.

It is well settled that in order to hold the defendant liable for negligence in a premises case, the plaintiff must prove that the that the defendant created the dangerous condition that caused the accident, or that the defendant had actual or constructive notice of the dangerous condition which it failed to remedy within a reasonable amount of time. (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774). “To constitute constructive notice of a dangerous condition, the defect or condition must be visible and apparent, and ... must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it [internal quotation marks and citation omitted].” (Gibbs v. Port Authority of New York, 17 A.D.3d 252, 255, 794 N.Y.S.2d 320).

“Where the defendant neither created the condition nor had actual notice, a defendant seeking to dismiss the complaint must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed.” (Giuffrida v. Metro North Commuter Railroad Co., 279 A.D.2d 403, 404, 720 N.Y.S.2d 41;Colt v. Great Atlantic & Pacific Tea Company, Inc., 209 A.D.2d 294, 618 N.Y.S.2d 721;Simuel v. 165 East 72nd Apartment Corp., 29 Misc.3d 1206(A)).

There is no evidence that a dangerous condition existed at any time prior to April 3, 2007, or that defendant had any notice of any dangerous defective condition. The EBT testimony of Jay Lowenstein, on behalf of defendant Clemons, reveals that no complaints were made about the entrance doors prior to April 3, 2007. Additionally, there were no accidents reported that occurred at that location of the building prior to April 3, 2007.

In support of her cross-motion for summary judgment and in opposition to defendant's motion plaintiff relies on by Nicholas Belizzi's affidavit. Mr Belizzi refers to section 27–651 of the New York City Building Code, “Panels Subject to Human Impact.” He opines that if the subject glass panel did not fall within one of the exceptions, it would have been required to have a push-bar or protective grille. He readily admits that if the glass panel at issue was made of tempered glass, then it would not be subject to the Building Code. In its reply, defendant definitively establishes that the glass panel was in fact made of tempered glass. Therefore, the building code is inapplicable herein.

Mr. Belizzi further cites the mandates of Labor Law 241–b and 12NYCRR Part 47. These authorities are also inapplicable herein since they are New York State regulations and pertain to buildings in NYS and NYC that are NYS operated. Plaintiff's expert also opines that notwithstanding any codified rules or regulations, the clear glass panel where plaintiff alleges to have been injured, is deceptive and misleading in that it could be easily mistaken as an open door or doorway.

In addition to arguing that the court...