Donnelly v. St. Agnes Cathedral Sch.

• Decision Date: 08 May 2013
• Citation: 106 A.D.3d 773,2013 N.Y. Slip Op. 03296,964 N.Y.S.2d 262
• Parties: Sean DONNELLY, etc., respondent, v. ST. AGNES CATHEDRAL SCHOOL, appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 773
964 N.Y.S.2d 262
2013 N.Y. Slip Op. 03296

Sean DONNELLY, etc., respondent,
v.
ST. AGNES CATHEDRAL SCHOOL, appellant.

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

May 8, 2013.

[964 N.Y.S.2d 263]

Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Willston Park, N.Y. (Christine M. Gibbons of counsel), for appellant.

McCarthy & Kelly LLP, New York, N.Y. (William P. Kelly of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.

[106 A.D.3d 773]In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (K. Murphy, J.), dated March 26, 2012, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The infant plaintiff, who was 11 years old at the time of the incident, allegedly was injured when a fire door at the defendant's school closed on the fingertips of his right hand. As a result, the infant plaintiff, by his mother and natural guardian, commenced this action against the defendant, alleging causes of action to recover damages based upon premises liability and negligent supervision. The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint.

For a landowner to be liable in tort to a plaintiff injured as a result of an allegedly defective or dangerous condition on the premises, the plaintiff must establish that a defective or dangerous condition existed and that the landowner either created the condition or had actual or constructive notice of its existence in time to remedy it before the plaintiff's injury ( see Fontana v. R.H.C. Dev., LLC, 69 A.D.3d 561, 892 N.Y.S.2d 504;Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d 560, 792 N.Y.S.2d 123).

In support of its summary judgment motion, the defendant submitted, inter alia, the infant plaintiff's deposition testimony. He stated that at the time of the accident he approached the subject door walking forward, but then turned to open it by pushing against it with his back. Thinking that he had heard someone calling him, he began to move forward while trying to hold the door open behind him with his right hand. The door closed, pinching his fingertips between the hinge side of the door and the...