Smith v. Szpilewski

• Decision Date: 06 May 2016
• Docket Number: 239 CA 15-01289.
• Parties: Terry SMITH, Plaintiff–Respondent, v. Eugene SZPILEWSKI and Felicia Szpilewski, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1342

32 N.Y.S.3d 393

2016 N.Y. Slip Op. 03606

Terry SMITH, Plaintiff–Respondent,

v.Eugene SZPILEWSKI and Felicia Szpilewski, Defendants–Appellants.

239 CA 15-01289.

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

May 6, 2016.

Rodgers Law Firm, Buffalo (Mark C. Rodgers of Counsel), for Defendants–Appellants.

Collins & Collins Attorneys, LLC, Buffalo (Michael Lancer of Counsel), for Plaintiff–Respondent.

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when a trap door came down onto her head as she walked upstairs from the basement of the bar where she worked. Defendants, the owners of the premises, moved for summary judgment dismissing the complaint. Supreme Court denied the motion, and we affirm. Defendants failed to meet their initial burden of establishing as a matter of law that the door did not constitute a dangerous condition in view of the absence of a latch or other mechanism to secure it in the open position (see Daries v. Haym Solomon Home for Aged, 4 A.D.3d 447, 448, 772 N.Y.S.2d 362

; see generally

Bielicki v. Excel Indus., Inc., 104 A.D.3d 1318, 1319, 961 N.Y.S.2d 708 ; Matter of

Kania v. Suchocki, 294 A.D.2d 926, 927, 741 N.Y.S.2d 639 ), that they lacked actual or constructive notice of the allegedly dangerous condition (see

Rachlin v. Michaels Arts & Crafts, 118 A.D.3d 1391, 1392–1393, 988 N.Y.S.2d 741 ; Hanley v. Affronti, 278 A.D.2d 868, 869, 718 N.Y.S.2d 753 ; see generally

Harris v. Seager, 93 A.D.3d 1308, 1308–1309, 941 N.Y.S.2d 415 ), or that the allegedly dangerous condition of the door was not a proximate cause of the accident (see Mercedes v. Menella, 34 A.D.3d 655, 656, 827 N.Y.S.2d 73

; Losurdo v. Skyline Assoc., L.P., 24 A.D.3d 1235, 1237, 807 N.Y.S.2d 249 ; cf.

Anilus v. Realties, 206 A.D.2d 446, 447, 614 N.Y.S.2d 551 ). “Given that defendant[s] failed to meet [their] initial burden, we do not address [their] contention that the expert affidavit submitted by plaintiff was insufficient to raise a triable issue of fact” (Letts v. Globe Metallurgical, Inc., 89 A.D.3d 1523, 1524, 933 N.Y.S.2d 156 ; see

Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Contrary to the position of the dissent, we conclude that the record does not definitively establish that the alleged accident resulted from a person intentionally closing the door. Plaintiff's theory of the case does not presuppose that the door was closed intentionally, and her testimony that the wife of one of the bar's owners closed the door on her is based on hearsay and thus insufficient to meet defendants' motion burden (see Kramer v. Oil Servs., Inc., 56 A.D.3d 730, 730, 868 N.Y.S.2d 246

; Smilanich v. Sauna Buffalo, 267 A.D.2d 1049, 1049, 700 N.Y.S.2d 638 ; see generally

Cox v. State of New York, 3 N.Y.2d 693, 698, 171 N.Y.S.2d 818, 148 N.E.2d 879 ). In any event, that testimony is contradicted by the testimony of the bar owner in question that he was the one who closed the door at the relevant time and that plaintiff was not on the stairs when he did so.

It is hereby ORDERED that the order so appealed from is affirmed without costs.

All concur except CARNI

, J., who dissents and votes to reverse in accordance with the following memorandum:

I respectfully dissent. Initially, in order to prevail on a motion for summary judgment in a premises liability case, a defendant is “ ‘required to establish as a matter of law that [it] maintained the property in question in a reasonably safe condition and that [it] neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof’ ” (Mokszki v. Pratt, 13 A.D.3d 709, 710, 786 N.Y.S.2d 222

; see

Richardson v. Rotterdam Sq. Mall, 289 A.D.2d 679, 679, 734 N.Y.S.2d 303 ). I conclude that defendants met that burden on their motion for summary judgment dismissing the complaint, and that plaintiff failed to raise a triable issue of fact (see

Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).

Plaintiff alleges that she was injured when someone closed a trap door on her head as she was ascending a stairway from the basement in the premises. The trap door had been in the same structural condition and configuration since 1981. In support of their motion, defendants established that the trap door opening was protected on two sides with a steel tubular railing 1.5 inches in diameter that was installed approximately nine years before the accident. A third side adjoined a wall such that no foot traffic in the premises could possibly encounter the opening or the opened trap door from that direction. When the trap door, which weighed approximately 50 to 75 pounds, was opened, it leaned against the steel railing. Defendants submitted the deposition testimony of plaintiff, who was employed by the business at the premises three days per week for four years prior to the accident. Plaintiff testified that she opened and closed the trap door between five and six times each day that she worked at the premises. Moreover, plaintiff never observed or was otherwise aware of any occasion when the trap door closed on its own without deliberate human effort. On the day of the accident, plaintiff made at least three prior trips to the basement through the trap door-all without incident. Plaintiff testified that she had never had any trouble with the door and never made, heard, or received any complaints about the operation of the trap door. On her last trip to the basement, plaintiff began to ascend the stairs after retrieving some frozen food packages, and she alleges that the trap door came down and struck her in the head. When asked at her deposition if she knew how the door came down, plaintiff testified: “Lisa put it down. I was told and she apologized. She said she didn't see me going back down.” Defendants also submitted the deposition testimony of Robert Szpilewski (Robert), the owner of the business that occupied the premises, who testified that he had operated the business on the premises for 14 years and had operated the trap door “thousands of times” before the accident. Robert testified that it is “close to impossible” for a person to drop the trap door, and that it is “[not] possible to be able to put [the] door down and not see somebody coming up those stairs.” Robert testified that, when closing the trap door, a person has to “stand at the top of the stairs to the left of the rail so you're facing down into the stairwell.” Robert never received any complaints about the trap door prior to this incident. According to Robert, and the co-owner of the business, Steven Szpilewski, during the 14–year operation of the business, the trap door has only been closed purposefully, and there has been no prior incident where a person was struck by the trap door. Robert testified that, on the day in question, he was the person who closed the door without knowing that plaintiff was still in the basement, and that plaintiff was not at the bottom of the stairs when he did so. Although plaintiff alleges that Robert's wife, Lisa Szpilewski, closed the door, Robert confirmed that he was the person who closed the trap door before plaintiff's incident. In either case, the evidence is undisputed that the trap door was not inadvertently bumped ...