| Dos Santos v Power Auth. of State of N.Y. |
| 2011 NY Slip Op 05016 [85 AD3d 718] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Nadia Dos Santos et al., Appellants, v Power Authority ofState of New York, Respondent, and Stuart Dean Co., Inc.,Appellant. |
—[*1]
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.),entered April 1, 2010, as, in effect, granted those branches of the defendants' separate motionswhich were for summary judgment dismissing the complaint insofar as asserted against each ofthose defendants and denied their cross motion for summary judgment on the issue of liability,and the defendant Stuart Dean Co., Inc., separately appeals, as limited by its brief, from so muchof the same order as denied that branch of its motion which was for summary judgmentdismissing the cross claim for contractual indemnification asserted against it by the defendantPower Authority of the State of New York and granted that branch of the motion of the defendantPower Authority of the State of New York which was for summary judgment on that defendant'scross claim against it for contractual indemnification.
Ordered that the order is reversed insofar as appealed from by the defendant Stuart Dean Co.,Inc., on the law, that branch of the motion of the defendant Power Authority of the State of NewYork which was for summary judgment on its cross claim for contractual indemnification againstthe defendant Stuart Dean Co., Inc., is denied, that branch of the motion of the defendant StuartDean Co., Inc., which was for summary judgment dismissing that cross claim is granted; and it isfurther,
Ordered that the order is affirmed insofar as appealed from by the plaintiffs; and it is further,
Ordered that one bill of costs is awarded to the defendant Power Authority of the [*2]State of New York, payable by the plaintiffs, and one bill of costs isawarded to the defendant Stuart Dean Company, Inc., payable by the defendant Power Authorityof the State of New York.
On January 18, 2006, the injured plaintiff, Nadia Dos Santos (hereinafter Dos Santos),attempted to enter an office building at 127 Main Street in White Plains through one of the tworevolving doors. As Dos Santos entered the doorway, however, a wing of the revolving doorcollapsed into another wing, sandwiching her between the two wings and allegedly injuring her.Dos Santos and her husband, suing derivatively (hereinafter together the plaintiffs), commencedthis action against the owner of the building, the Power Authority of the State of New York(hereinafter the Power Authority), and Stuart Dean Co., Inc. (hereinafter Stuart Dean), which,pursuant to a contract with the Power Authority (hereinafter the contract), was responsible forsemiannual inspections and maintenance of the building's revolving doors. Stuart Dean asserted across claim for contribution against the Power Authority, which, in turn, asserted a cross claimfor, inter alia, contractual indemnification against Stuart Dean. After discovery was completed,each of the parties moved, among other things, for summary judgment dismissing the complaintinsofar as asserted against each of them. The Supreme Court, inter alia, granted those branches ofthe defendants' separate motions which were for summary judgment dismissing the complaintinsofar as asserted against each of them. The Supreme Court also granted that branch of thePower Authority's motion which was for summary judgment on its cross claim for contractualindemnification against Stuart Dean and denied that branch of Stuart Dean's motion which wasfor summary judgment dismissing that cross claim. The plaintiffs appeal and Stuart Deanseparately appeals from those parts of the order as are adverse to each of them.
The evidence showed that Stuart Dean had last inspected and performed maintenance on thedoor approximately seven weeks before Dos Santos was allegedly injured. The wings of the doorhad never previously collapsed before Dos Santos's accident. There was also evidence that thewings of the revolving door were designed to collapse in a book-fold position when sufficientpressure was applied, in order to avoid the shattering of the glass or to facilitate quick evacuationof the building. The degree of pressure necessary for a design collapse could be adjusted andcalibrated. The plaintiffs alleged that the defendants were negligent in their maintenance of thedoor, relying, in part, on the doctrine of res ipsa loquitur.
A landowner may be held liable in tort to a plaintiff injured because of a defective ordangerous condition on the premises when the landowner either created the condition or hadactual or constructive notice of its existence in time to remedy it before the plaintiff's injury (see Walsh v Super Value, Inc., 76AD3d 371, 375 [2010]; Fontana vR.H.C. Dev., LLC, 69 AD3d 561 [2010]). Since the wings in the door had nevercollapsed in this manner before, the defendants did not have either actual or constructive noticeof the allegedly dangerous condition, so the plaintiffs necessarily relied on the theory that thedefendants caused the dangerous condition themselves.
The defendants established their prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against each of them. Stuart Dean submittedevidence that it had completed a semiannual inspection of the door seven weeks before the doorcollapsed and that the door had not collapsed at any time prior to the time of Dos Santos's injury.Indeed, Dos Santos testified at her deposition that in the five years she had worked in thebuilding, she had never heard of anyone else being injured in a like manner or of the doorsmalfunctioning. Stuart Dean also submitted evidence from an expert that the maintenance workhad been performed properly and according to the accepted industry field technique. There wasalso evidence, including from Dos Santos herself, that on the day of the incident, a strong windprevailed in the area of the building's entryway. One witness had testified at his deposition thatthe other revolving door, next to the first one, collapsed into a book-fold position, and that acigarette receptacle was blown over by the force of the wind. The Power Authority establishedthat it had not performed any maintenance itself on the revolving door. Thus, the defendantsestablished, prima facie, that the door collapsed, as designed, because of the high wind, ratherthan as the result of negligence.
In opposition, the plaintiffs failed to establish the existence of a triable issue of fact. Inparticular, the only evidence submitted as to the negligent maintenance of the revolving door was[*3]the affidavit of an expert who had not inspected or measuredthe calibration of the revolving door to determine the collapsible pressure setting of the door, anddid not cite any industry or manufacturers' standards as to what the appropriate minimumcollapsible pressure should have been. As such, his opinion that the pressure had been set too lowwas conclusory and, therefore, insufficient to raise a triable issue of fact (see Cilinger v Arditi Realty Corp., 77AD3d 880, 882 [2010]).
The plaintiffs' reliance on the doctrine of res ipsa loquitur was insufficient to establish theirprima facie entitlement to judgment as a matter of law. A plaintiff must establish the followingthree prerequisites for the applicability of that doctrine: (1) that the event was one that would notordinarily occur in the absence of someone's negligence; (2) that the event was caused by anagency or instrumentality within the exclusive control of the defendant; and (3) that the accidentwas not in part caused by the plaintiff's own voluntary or contributory conduct (see Morejon v Rais Constr. Co., 7NY3d 203, 209 [2006]; Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997];Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986]). Unlike a swingingdoor, the revolving door in question was specifically manufactured to allow for book-foldcollapse. Thus, the fact that it collapsed does not, in and of itself, imply negligence. In theabsence of any other evidence of negligence, the plaintiffs failed to sustain their burden ofestablishing their prima facie entitlement to judgment as a matter of law. The Supreme Courttherefore properly granted the defendants' separate motions for summary judgment dismissing thecomplaint insofar as asserted against each of them and denied the plaintiffs' cross motion forsummary judgment on the issue of liability.
The Supreme Court erred, however, in granting that branch of the Power Authority's motionwhich was for summary judgment on its cross claim for contractual indemnification againstStuart Dean and in denying that branch of Stuart Dean's motion which was for summaryjudgment dismissing that cross claim. "The right to contractual indemnification depends upon thespecific language of the contract" (George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2009]). Apromise to indemnify should not be found unless it can be "clearly implied from the language andpurpose of the entire agreement and the surrounding circumstance" (id.). In the contract,Stuart Dean agreed to indemnify Power Authority for any loss, including attorney's fees and courtcosts, that "ar[ose] out of, in connection with, or as a consequence of" its performance under thecontract. The Power Authority was not required to establish, prima facie, that Stuart Dean wasnegligent, but it was required to establish that the injuries arose out of Stuart Dean's performanceof its obligations under the contract. The Power Authority failed in this regard. The evidenceestablished that the injury occurred due to high winds, rather than anything that Stuart Dean or itsemployees did under the contract. Consequently, the indemnification provision, by its terms, didnot apply to the facts herein, and Stuart Dean was entitled to summary judgment dismissing thePower Authority's contractual indemnification cross claim.
The plaintiffs' remaining contention is without merit. Rivera, J.P., Balkin, Lott and Austin,JJ., concur.