| Fontana v R.H.C. Dev., LLC |
| 2010 NY Slip Op 00096 [69 AD3d 561] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Enza Fontana, Respondent, v R.H.C. Development, LLC,Defendant/Third-Party Plaintiff-Appellant-Respondent. Lawrence S. Esposito, Third-PartyDefendant-Respondent-Appellant. |
—[*1] James J. Toomey, New York, N.Y. (Evy L. Kazansky of counsel), for third-partydefendant-respondent-appellant. Jonathan D'Agostino & Associates, P.C., Staten Island, N.Y. (Glen Devora of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant/third-party plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, RichmondCounty (Fusco, J.), dated October 21, 2008, as denied its cross motion for summary judgmentdismissing the complaint and the counterclaim by the third-party defendant, in effect, forcontribution, and the third-party defendant cross-appeals from so much of the same order asdenied his motion for summary judgment dismissing the third-party complaint.
Ordered that the order is reversed, on the law, with one bill of costs to thedefendant/third-party plaintiff and the third-party defendant, the third-party defendant's motionfor summary judgment dismissing the third-party complaint is granted, and thedefendant/third-party plaintiff's cross motion for summary judgment dismissing the complaintand the third-party counterclaim is granted.
On August 21, 2003, the plaintiff, Enza Fontana, who worked as a cashier for nonparty CardCorner II, allegedly was injured when the back door of the store closed on her foot. R.H.C.Development, LLC (hereinafter RHC), owned the store space which was leased by thethird-party defendant, Lawrence S. Esposito, and which housed Card Corner II. The plaintiffbrought this action against RHC, as owner of the premises, alleging negligence. RHC answered,and subsequently brought a third-party action against Esposito for indemnification.
"In order for a landowner to be liable in tort to a plaintiff who is injured as a result of anallegedly defective condition upon property, it must be established that a defective conditionexisted and that the landowner affirmatively created the condition or had actual or constructive[*2]notice of its existence" (Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560, 560 [2005]; see Bodden v Mayfair Supermarkets, 6AD3d 372, 373 [2004]). Here, the evidence showed that the door that closed on theplaintiff's foot did not constitute a defective or dangerous condition. The plaintiff acknowledgedin her deposition testimony that she had worked at Card Corner II for about two years, andduring that time had used the door every day without incident, and had never taken any specialprecautions while holding it. Further, she had never complained about the door before theaccident, nor, to her knowledge, had anyone else ever complained about it. This evidence wassufficient to establish a prima facie case that the door was not defective (see Maldonado v SuJong Lee, 278 AD2d 206, 207 [2000]; see also DeCarlo v Village of Dobbs Ferry, 36 AD3d 749, 750[2007]; Aquila v Nathan's Famous, 284 AD2d 287, 288 [2001]).
In opposition to RHC's motion, the plaintiff failed to raise a triable issue of fact. Contrary tothe plaintiff's contention, it cannot be inferred that the door was defective or improperlymaintained merely because it could close fast enough, or hard enough, to cause the plaintiff'sinjuries (see DeCarlo v Village of Dobbs Ferry, 36 AD3d at 750; Lezama v 34-15Parsons Blvd, LLC, 16 AD3d at 561; Hunter v Riverview Towers, 5 AD3d 249, 250 [2004]).
Further, contrary to the plaintiff's contention, the doctrine of res ipsa loquitur is notapplicable here. The evidence failed to show either that the accident was "of a kind whichordinarily does not occur in the absence of someone's negligence," or that RHC was in exclusivecontrol of the premises (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226[1986]). Accordingly, the Supreme Court should have granted RHC's cross motion for summaryjudgment.
In light of the above determination, Esposito's motion for summary judgment dismissing thethird-party complaint also should have been granted (see e.g. Brooks v Maintenance Serv. Resources, Inc., 44 AD3d887, 889 [2007]). Skelos, J.P., Dickerson, Eng and Sgroi, JJ., concur.