| Bielicki v Excel Indus., Inc. |
| 2013 NY Slip Op 01971 [104 AD3d 1318] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| Gerald Bielicki, Appellant, v Excel Industries, Inc.,Respondent. |
—[*1] Law Offices of Laurie G. Ogden, Buffalo (Tara Waterman of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.),entered March 1, 2012. The order granted defendant's motion for summary judgment anddismissed plaintiff's complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries heallegedly sustained when, in the course of his employment, he was delivering a packageto defendant's property. He attempted to open a door but, according to plaintiff, the doorwould not open because it was stuck and defendant had prior notice that "the door stuckon occasion." Defendant moved for summary judgment dismissing the complaint on thesole ground that the "condition alleged by Plaintiff, [i.e.], the door that would not openon the date of the accident, is not an inherently dangerous condition giving rise to a dutyin tort." We conclude that Supreme Court erred in granting the motion.
As the Court of Appeals has written, the issue "whether a dangerous or defectivecondition exists on the property of another so as to create liability depends on thepeculiar facts and circumstances of each case and is generally [one] of fact for the jury"(Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotationmarks omitted]; see Werner vKaleida Health, 96 AD3d 1569, 1570 [2012]; Vanderwater v Sears, 277AD2d 1056, 1056 [2000]; cf.Palmer v Barnes & Noble Booksellers, Inc., 34 AD3d 1287, 1288 [2006]). Withrespect to summary judgment motions, it is well established that "[a] motion for summaryjudgment must be denied 'if there is any significant doubt as to the existence of a triableissue [of fact], or if there is even arguably such an issue' . . . Moreover,summary judgment is seldom appropriate in a negligence action" (Vanderwater,277 AD2d at 1056; see generally Andre v Pomeroy, 35 NY2d 361, 364-365[1974]; Stone v Goodson, 8 NY2d 8, 12-13 [1960], rearg denied 8 NY2d934 [1960]).
Contrary to defendant's contention, we conclude that the issue whether the door, ifstuck, constituted a dangerous condition is "fairly debatable" (Stone, 8 NY2d at12). We reject defendant's attempts to distinguish this case from cases in which anattempt to open a stuck door [*2]caused a differentinjury, i.e., putting one's hand through a pane of glass rather than injuring one's arm orshoulder (see Shay v Mozer,Inc., 80 AD3d 687, 687 [2011]; Gomez v Hicks, 33 AD3d 856, 856 [2006]; Small v870-7th Ave. Corp., 273 App Div 216, 217 [1948]; see also Obshatcko v Y. M.& Y. W. H. A. of Williamsburg, 45 AD2d 1023, 1023 [1974]). In the foregoingcases there was an issue of fact whether the injured plaintiff sustained a foreseeableinjury and, "[i]f the risk of harm [is] foreseeable, the particular manner in which theinjury occurred . . . [is] not material to defendant's liability" (Buckley vSun & Surf Beach Club, 95 NY2d 914, 915 [2000]; see generally Sanchez vState of New York, 99 NY2d 247, 252 [2002]). In our view, the risk that a personattempting to pull open a stuck door might injure his or her arm or shoulder is asforeseeable as the risk of a person pushing his or her hand through a stuck door's glasspane while attempting to push the door open (see e.g. Shay, 80 AD3d at 687;Gomez, 33 AD3d at 856; cf. Lopes v Sears, Roebuck & Co., 273 AD2d360, 361 [2000]), and indeed is more foreseeable than the risk of a person injuring his orher eye on a hook on the stuck door when that door is kicked open by another person(see Obshatcko, 45 AD2d at 1023). We therefore conclude that there is a triableissue of fact whether the door, if it was stuck, constituted a dangerous condition (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Present—Scudder, P.J., Fahey, Sconiers, Valentino and Martoche, JJ.