Opinion
2017–12088 Index No. 2155/16
04-24-2019
Ryan ESKRIDGE, Appellant, v. TJBM ENTERPRISES, INC., et al., Respondents.
Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T. Mark of counsel), for appellant. Farber Brocks & Zane, LLP, Garden City, N.Y. (Tracy L. Frankel of counsel), for respondents.
Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T. Mark of counsel), for appellant.
Farber Brocks & Zane, LLP, Garden City, N.Y. (Tracy L. Frankel of counsel), for respondents.
WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, BETSY, BARROS FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered September 29, 2017. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On January 23, 2016, the plaintiff was entering the defendants' premises when the front entrance door allegedly closed too quickly and slammed shut, injuring the plaintiff's left index finger. The plaintiff subsequently commenced this action to recover damages for personal injuries against the defendants. The defendants moved for summary judgment dismissing the complaint, contending, inter alia, that the door was not in a defective condition. The Supreme Court granted the defendants' motion. The plaintiff appeals.
In a premises liability case based upon an allegedly defective condition, a plaintiff must establish that a defective condition existed and that the defendant affirmatively created the condition or had actual or constructive notice of its existence (see Hoffman v. Mucci, 124 A.D.3d 723, 724, 2 N.Y.S.3d 531 ; Donnelly v. St. Agnes Cathedral Sch., 106 A.D.3d 773, 964 N.Y.S.2d 262 ; Fontana v. R.H.C. Dev., LLC, 69 A.D.3d 561, 562, 892 N.Y.S.2d 504 ; Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d 560, 792 N.Y.S.2d 123 ). Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the door, which had been used by the plaintiff on four occasions on the night of the incident without any difficulty, and by numerous patrons since 2014 without incident, was not in a defective condition (see Hoffman v. Mucci, 124 A.D.3d at 724, 2 N.Y.S.3d 531 ; Donnelly v. St. Agnes Cathedral Sch., 106 A.D.3d at 773–774, 964 N.Y.S.2d 262 ; Fontana v. R.H.C. Dev., LLC, 69 A.D.3d 561, 892 N.Y.S.2d 504 ; DeCarlo v. Village of Dobbs Ferry, 36 A.D.3d 749, 828 N.Y.S.2d 532 ; Lezama v. 34–15 Parsons Blvd., LLC, 16 A.D.3d 560, 792 N.Y.S.2d 123 ; Aquila v. Nathan's Famous, 284 A.D.2d 287, 725 N.Y.S.2d 371 ; Maldonado v. Sun Jong Lee, 278 A.D.2d 206, 717 N.Y.S.2d 258 ). In opposition, the affidavit of the plaintiff's expert, who never inspected the subject door, failed to raise a triable issue of fact (see Dos Santos v. Power Auth. of State of N.Y., 85 A.D.3d 718, 721, 924 N.Y.S.2d 558 ; Canales v. Hustler Mfg. Co., 12 A.D.3d 392, 393, 786 N.Y.S.2d 539 ; Banks v. Freeport Union Free School Dist., 302 A.D.2d 341, 342, 753 N.Y.S.2d 890 ). "While [the opinion] of an expert based on photographs often is acceptable, it is essential that the facts upon which the expert relies must be ‘fairly inferable’ from the evidence" ( Davidson v. Sachem Cent. School Dist., 300 A.D.2d 276, 277, 751 N.Y.S.2d 300 [citation omitted] ), which is not the case here.
In light of our determination, it is not necessary to reach the parties' remaining contentions.
Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for summary judgment dismissing the complaint.
MASTRO, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.