McGarvey v. Bank of New York

• Decision Date: 25 May 2004
• Docket Number: 3221.
• Citation: 7 A.D.3d 431,776 N.Y.S.2d 793,2004 NY Slip Op 04110
• Parties: MARY McGARVEY, Appellant, v. BANK OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

7 A.D.3d 431

776 N.Y.S.2d 793

2004 NY Slip Op 04110

MARY McGARVEY, Appellant, v. BANK OF NEW YORK, Respondent.

3221.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 25, 2004.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 18, 2003, which granted defendant's motion for summary judgment dismissing the complaint, affirmed, without costs.

Plaintiff was injured on defendant's premises, allegedly as a result of the action of an inadequately checked revolving door. Defendant's evidence, however, established prima facie that the door was regularly inspected and that defendant had had neither actual nor constructive notice of the defect alleged, and inasmuch as plaintiff did not in response adduce evidence competent to warrant a contrary inference, the grant of defendant's summary judgment motion was proper (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The affidavit of plaintiff's expert, who examined the door more than two years after plaintiff's accident, was not probative of whether the door revolved at a hazardous speed at the time of the accident (see Kruimer v National Cleaning Contrs., 256 AD2d 1 [1998]), much less of whether defendant had notice of any such defect (see also Figueroa v Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210 [1998] [court properly rejected as conclusory that part of expert's affidavit based on observation of walkway two years after accident]).

Concur — Buckley, P.J., Nardelli and Marlow, JJ.

Saxe, J., dissents in a memorandum as follows.

In order to defeat a defendant's motion for summary judgment, the plaintiff need only present evidentiary materials sufficient to create a material question of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]). I believe that plaintiff successfully fulfilled that obligation here. Further, this is not an appropriate situation in which to apply a rule that an expert's opinion should be disregarded where it is based upon observations made long after the accident (see Kruimer v National Cleaning Contrs., 256 AD2d 1 [1998]).

On August 19, 1999, plaintiff entered the revolving door of the Bank of New York branch located at 162 Fifth Avenue in Manhattan. After she pushed the door forward, another person, in the process of exiting the bank, caused the revolving door to accelerate rapidly and strike plaintiff on the shoulder, and she fell backwards into the bank's vestibule and hit her head on a metal stanchion. She claims that the bank was negligent in its construction or maintenance of the revolving door such that it revolved too rapidly when pushed and lacked a sufficient deterrent or other break.

The affidavits submitted by plaintiff, both her own and that of her expert, sufficed to create a factual issue as to whether the bank's revolving door was defective. Robert Magaraci, a senior vice-president of Sterling Service Companies, Inc., which maintains and repairs revolving doors in the New York City area, asserted in his affidavit that upon his examination of the revolving door on April 22, 2001 and July 17, 2002, he spun it with his hand and timed it with his stopwatch, and computed that the door's revolution speed was 17 to 18 revolutions per minute (rpm), which amounted to 2 to 3 rpm greater than the maximum allowable by New York City Building Code (Administrative Code of City of NY) § 27-371 (m) (2) (d). Magaraci also asserted that both the door's weatherstripping and the surface under the door were worn, both of which conditions would lessen friction and increase the speed of the door's rotation.

I see no reason to hold that this affidavit must be disregarded as a matter of law. The opinion of such an individual is certainly probative on the question of whether the door in...