| Hyatt v Price Chopper Operating Co., Inc. |
| 2011 NY Slip Op 08881 [90 AD3d 1218] |
| December 8, 2011 |
| Appellate Division, Third Department |
| Raina Hyatt, Respondent, v Price Chopper Operating Company,Inc., Appellant. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola (Edward J. Nitkewiczof counsel), Mineola, for respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Hummel, J.), entered March 17,2011 in Rensselaer County, which denied defendant's motion for summary judgment dismissingthe complaint.
Plaintiff commenced this action seeking to recover for injuries allegedly sustained in March2008 while shopping at one of defendant's grocery stores in the City of Troy, Rensselaer County.On the day in question, plaintiff opened the far left-hand door of the bagel display case, removedthe desired bagels and closed the door—all without incident and, with regard to the displaycase in general, as she previously had done on various occasions during the course of the sevenor eight years that she had shopped at this particular store. When plaintiff attempted to repeat thisprocess using the immediately adjacent right-hand door, the door allegedly swung shut, strikingthe back of her hand and causing injury.[FN*]Plaintiff continued shopping and, [*2]approximately two weekslater, reported the incident to the store manager.
Following joinder of issue and discovery, during the course of which each party retained aprofessional engineer to examine the offending door and opine as to its allegedly defectiveproperties or lack thereof, defendant moved for summary judgment dismissing the complaint.Supreme Court denied the motion, finding that the competing expert reports and affidavits raiseda question of fact as to defendant's alleged negligence. Defendant now appeals.
We affirm. In support of its motion for summary judgment, defendant tendered the affidavitand report of its expert who, after inspecting the doors on the bagel display case in August 2010,determined that the materials, manner of operation and physical properties thereof complied withapplicable industry standards and were not otherwise defective. Defendant's expert furtheropined, after calculating the average closing time of the display case doors, that the maximumimpact force that plaintiff could have experienced if the door in question closed on her hand was"not likely to even bruise an apple." Additionally, defendant proffered the affidavit andexamination before trial testimony of its store manager, who stated that the display case doorswere visually inspected on a daily basis when they were opened to stock the case, and that whenhe inspected the doors after plaintiff reported the incident, he found them to be in good workingorder. The manager further stated that during his tenure in that store, hundreds of customers hadused the display case without incident, that he had not received any prior complaints regardingthe doors' operation and that he was unaware of any prior injuries as the result thereof. Suchproof, in our view, was more than sufficient to discharge defendant's burden of establishing thatit maintained its premises in a reasonably safe condition and neither created the allegedlydangerous condition nor had actual or constructive notice thereof (see Cietek v Bountiful Bread of StuyvesantPlaza, Inc., 74 AD3d 1628, 1629 [2010]; Cerkowski v Price Chopper Operating Co., Inc., 68 AD3d 1382,1383-1384 [2009]; Ensher vCharlton, 64 AD3d 1032, 1033 [2009]; Marszalkiewicz v Waterside Plaza, LLC, 35 AD3d 176, 176-177[2006]; Hunter v Riverview Towers,5 AD3d 249, 249 [2004]).
In opposition, plaintiff submitted an affidavit and report from her expert, who inspected thedisplay case in July 2010. According to plaintiff's expert, the sweep setting on the door thatallegedly struck plaintiff's hand was out of adjustment, causing the door to close at a faster thannormal rate of speed and resulting in what he characterized as an "unforgiving" blow to plaintiff'shand. Plaintiff's expert further opined that because the display case was located in a high trafficarea, the closing mechanism on the doors needed to be inspected and maintained on a regularbasis. As defendant's manager acknowledged that neither he nor his staff inspected the closingmechanism in any detail, plaintiff's expert concluded that an accident of this sort was "inevitable"and the door that allegedly struck plaintiff's hand constituted an unsafe condition.
While it is true that plaintiff's expert did not inspect the door at issue until more than twoyears after plaintiff's accident, there is no indication that either the door itself or the relevantclosing mechanism was replaced or altered in the interim. Further, to the extent that the delayedinspection may be said to constitute a deficiency in the report submitted by plaintiff's expert, we[*3]need note only that the report submitted by defendant's expertsuffers from the same alleged infirmity. Moreover, although defendant challenges the quality ofthe opposing expert's inspection and the methodology (or claimed lack thereof) employed, we donot find the opinion offered by plaintiff's expert to be so lacking in factual or scientificfoundation as to be utterly devoid of merit (cf. Pember v Carlson, 45 AD3d 1092, 1094 [2007]; compare Lezama v 34-15 Parsons Blvd,LLC, 16 AD3d 560, 561 [2005]). While the asserted shortcomings may well go to theweight to be accorded the expert's opinion at trial, we nonetheless agree with Supreme Court thatthe proof submitted by plaintiff is sufficient to raise a question of fact as to defendant's allegednegligence. Accordingly, defendant's motion for summary judgment dismissing the complaintwas properly denied.
Mercure, A.P.J., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: The design of the four displaycase doors was such that, once fully opened, the doors would remain in that position until someexternal force—for example, a customer's hand—caused the doors to move past aparticular point in their sweep arc, whereupon the doors would begin to self-close. According toplaintiff, she "fully opened" the right-hand door, expecting that it would remain open as theleft-hand door had done.