Siciliano v. Henry Modell & Co.

Tom, J.P., and Sweeny, J.,

dissent in a memorandum by Sweeny, J., as follows: The complaint alleges that on July 8, 2005, plaintiff sustained injuries when she was struck in the head by a door as she was exiting a store owned and operated by defendant. Plaintiff claims that defendant failed to properly maintain the door in a safe condition and that the door was defective. Her bill of particulars alleges that the exit door of defendant’s premises was defective in that a metal box/alarm box attached thereto was positioned at or near head level, the door’s opening and closing mechanism was not working properly, and the door closed rapidly without warning.

On its motion for summary judgment, defendant submitted evidence showing that it did not have notice of the allegedly dangerous condition of the door and that it maintained the door in a reasonably safe condition. At his deposition, the store’s assistant manager testified that he worked at that store from November 2004 until May 2007 and that he was working on the day of the incident. He stated that he inspected the door in question on a daily basis to see that it was working properly. He also stated that he looked at the alarm box on the exit door during those inspections. He further testified that the door in question had not been repaired since he began working at the store and that he had received no complaints about the door before this incident (see Hunter v Riverview Towers, 5 AD3d 249 [2004]). When plaintiff informed him that she was struck by the *538door, he tested the door immediately following the accident by pushing the door repeatedly and detected no problems. He also watched the door as customers were walking in and out, and determined that nothing was wrong with it. He testified that he checked the closing speed of the door and concluded that the speed was correct and that the door was not swinging back too fast. According to this witness, the “storm chain” on the door did not interfere with the opening width of the door or its closing speed. Thus, defendant established prima facie its entitlement to summary judgment.

In opposition, plaintiff failed to raise a triable issue of fact. The affidavit by her expert, who opined, inter alia, that the door closed too rapidly, was not sufficient to defeat the motion. The expert concluded that, based upon the store manager’s deposition and photographs, the door did not comply with New York State Building Code. He also opined that the storm chain and the box on the door reduced the width of the passage through the door, thus causing the door to close too rapidly when opened. In response, defendant submitted an affidavit by the same assistant store manager, clarifying his prior testimony and stating that the storm chain did not prevent the door from opening at its full width but rather was there to prevent the door from striking the plate glass display window when opened during a storm. He also stated again that there were no complaints regarding the door before this incident.

Contrary to the majority’s view, plaintiff’s expert’s opinion was speculative and unsupported by any evidentiary foundation (see Parris v Port of N.Y. Auth., 47 AD3d 460, 461 [2008]). The expert’s conclusion that the door closed too rapidly was not based on either a personal inspection or any scientific tests, although the expert himself claimed that scientific tests were necessary to detect any defects in the door (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544-545 [2002]; Santiago v United Artists Communications, 263 AD2d 407 [1999]). Moreover, the expert could not state the dimensions of the box attached to the door. The failure to conduct an inspection of the door, coupled with the lack of evidence concerning whether there were any complaints about the door or the box attached to the door at any time, precludes plaintiffs evidence from raising a triable issue of fact whether defendant had notice of a dangerous condition. Plaintiffs argument that the location of the box created an inherently dangerous condition is unconvincing, since she claims that the speed of the door, not the box attached to the door, was the proximate cause of her injuries.

As a result, the motion court correctly granted defendant’s *539motion for summary judgment and properly dismissed the complaint.