Singh v. United Cerebral Palsy of N.Y. City Inc.

• Decision Date: 25 February 2010
• Citation: 896 N.Y.S.2d 22,2010 N.Y. Slip Op. 01602,72 A.D.3d 272
• Parties: Sianna SINGH, Plaintiff–Respondent,v.UNITED CEREBRAL PALSY OF NEW YORK CITY, INC., et al., Defendants–Appellants,City of New York, Defendant.United Cerebral Palsy of New York City, Inc., et al., Third–Party Plaintiffs–Respondents,v.Miric Industries Incorporated, et al., Third–Party Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

72 A.D.3d 272
896 N.Y.S.2d 22
2010 N.Y. Slip Op. 01602

Sianna SINGH, Plaintiff–Respondent,
v.
UNITED CEREBRAL PALSY OF NEW YORK CITY, INC., et al., Defendants–Appellants,City of New York, Defendant.United Cerebral Palsy of New York City, Inc., et al., Third–Party Plaintiffs–Respondents,
v.
Miric Industries Incorporated, et al., Third–Party Defendants–Appellants.

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

Feb. 25, 2010.

[896 N.Y.S.2d 24]

Lester Schwab Katz & Dwyer, LLP, New York (Howard R. Cohen and Curt Schiner of counsel), for United Cerebral Palsy appellants/respondents.Cohen, Kuhn & Associates, New York (James V. Sawicki of counsel), for Miric Industries Incorporated, appellant.Law Offices of Charles J. Siegel, New York (Christopher A. South of counsel), for Reliable Door Corp., appellant.Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), and Cassisi & Cassisi, P.C., Mineola, for respondent.LUIS A. GONZALEZ, P.J., PETER TOM, RICHARD T. ANDRIAS, EUGENE NARDELLI, ROSALYN H. RICHTER, JJ.RICHTER, J.

[72 A.D.3d 274] On December 5, 2003, plaintiff Sianna Singh was walking with a colleague in an enclosed walkway between two buildings owned and occupied by defendants United Cerebral Palsy of New York City, Inc. and United Cerebral [ sic ] of New York City Community Mental Retardation Services Company, Inc. (collectively UCP). The automatic swinging doors leading into the second building were open as plaintiff approached. Plaintiff's colleague, who was walking one or two steps ahead of plaintiff, walked through the doors without incident. As plaintiff walked through, the doors allegedly closed and hit her on her right and left shoulders, causing injury. According to plaintiff, the [72 A.D.3d 275] automatic doors' motion sensor, which was mounted over the top of the doors, was defective because it failed to detect her as she walked through the doorway.

It is undisputed that UCP's maintenance staff was not responsible for doing repairs on the automatic doors or the sensor mechanism. Instead, UCP contacted defendant/third-party defendant Miric Industries Incorporated on an as-needed basis to perform work at the building.¹ If Miric received a call about the doors, Miric called third-party defendant Reliable Door Corp. to actually perform the work. Although Reliable's witness did not recall making any repairs on the doors, an invoice dated May 14, 2002 indicates that Reliable adjusted the motion sensor on that date.

Plaintiff alleges that UCP had both actual and constructive notice of the alleged defect in the automatic doors and was otherwise negligent in failing to conduct regular inspections of the doors. In particular, plaintiff contends that UCP failed to maintain proper alignment of the electronic beam that causes the doors to open and close. In addition, plaintiff invokes the doctrine of res ipsa loquitur, contending that this type of accident would not normally occur absent negligence. UCP commenced a third-party action against Miric and Reliable, asserting claims for contribution or indemnification or both.

UCP moved for summary judgment dismissing plaintiff's complaint or in the alternative for conditional summary judgment on its common-law indemnification claims against Miric and Reliable. Miric

[896 N.Y.S.2d 25]

cross-moved for summary judgment dismissing the complaint and the third-party complaint as against it, and Reliable cross-moved for summary judgment dismissing the third-party complaint as against it. Supreme Court denied all the motions. We modify to the extent of granting Miric's cross motion for summary judgment.

A property owner is subject to liability for a defective condition on its premises if a plaintiff demonstrates that the owner either created the alleged defect or had actual or constructive notice of it ( Mandel v. 370 Lexington Ave., LLC, 32 A.D.3d 302, 303, 820 N.Y.S.2d 249 [2006] ). To charge a defendant with constructive notice, the defect must be visible and apparent, and must exist for a sufficient[72 A.D.3d 276] length of time before the accident to permit the defendant's employees to discover and remedy it ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ).

UCP met its burden of showing that it neither created nor had actual or constructive notice of the alleged defect in the doors' sensor mechanism, and plaintiff failed to raise an issue of fact in opposition ( see Narvaez v. New York City Hous. Auth., 62 A.D.3d 419, 878 N.Y.S.2d 724 [2009], lv. denied 13 N.Y.3d 703, 2009 WL 2779372 [2009]; Clark v. New York City Hous. Auth., 7 A.D.3d 440, 777 N.Y.S.2d 450 [2004] ). Sam Radoncic, UCP's building services director, testified at his deposition that he was responsible for addressing complaints about the doors. Radoncic, who passed through the doors several...