| Zimbler v Resnick 72nd St Assoc. |
| 2010 NY Slip Op 09548 [79 AD3d 620] |
| December 28, 2010 |
| Appellate Division, First Department |
| Marsha Zimbler et al., Respondents, v Resnick 72nd StAssociates, Defendant, and The Board of Managers of the Oxford on Seventy Second et al.,Appellants. |
—[*1] Goldman & Grossman, New York (Eleanor R. Goldman of counsel), for The Fitness Company,appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), forrespondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 12, 2010, insofaras it denied the motions of defendants the Board of Managers of the Oxford on Seventy Second andBrown Harris Stevens Residential Management, LLC and defendant the Fitness Company for summaryjudgment dismissing the complaint as against them, unanimously affirmed, without costs.
The infant plaintiff was injured when a sliding glass door leading from an outdoor playground to thefitness club lounge fell on her as she attempted to open it. Plaintiff, who had used a different door to getfrom the lounge to the playground, testified at her deposition that when she tried to slide open the doorthat was not on the track, the top part started to fall on her. The building superintendent testified at hisdeposition that he arrived at the scene within minutes of the accident and was told by the infant plaintiff'snanny that the door was out of its track. In a second conversation, after the infant plaintiff was taken outby emergency medical personnel, the nanny told the superintendent that the door was outside its frameand had been in that position from the time she and the infant plaintiff entered the premises, maybe anhour or two before the accident.
In opposition to defendants' prima facie showing of entitlement to summary judgment, plaintiffsproduced sufficient evidence to raise a material issue of fact as to whether the door's off-track positionwas discernable for a long enough time to provide defendants with constructive notice of the dangerouscondition (see e.g. Rose v Da Ecib USA, 259 AD2d 258, 260 [1999]). Although the nanny'sstatements were not admissible under the excited utterance exception to the [*2]hearsay rule since there was no showing that they were made under thestress of excitement caused by the accident (see Lieb v County of Westchester, 176 AD2d704 [1991]; Pector v County of Suffolk, 259 AD2d 605 [1999]; compare Gagliardi vAmerican Suzuki Motor Corp., 303 AD2d 718 [2003], lv denied 100 NY2d 516[2003]), they were not the only evidence offered in opposition to defendants' motions from whichconstructive notice may be inferred, and thus may be considered along with the admissible evidence (see DiGiantomasso v City of New York, 55AD3d 502 [2008]; Matter of New YorkCity Asbestos Litig., 7 AD3d 285, 286 [2004]; Guzman v L.M.P. Realty Corp., 262AD2d 99, 100 [1999]).
Although it was not addressed by the motion court, we note that the doctrine of res ipsa loquitur isnot applicable to the facts here, where the door, located in a heavily trafficked area and intended to beused by the public, was not within the exclusive control of defendants (see Ebanks v New YorkCity Tr. Auth., 70 NY2d 621, 623 [1987]). Concur—Gonzalez, P.J., Mazzarelli, Andrias,Nardelli and Richter, JJ.