Opinion
6257 Index 307690/10
04-12-2018
Denise JONES, Plaintiff–Appellant, v. UNDERHILL REALTY, LLC, Defendant–Respondent.
Eisenberg & Baum, LLP, New York (Sagar Shah of counsel), for appellant. The Chartwell Law Offices, LLP, New York (William H. Grae of counsel), for respondent.
Eisenberg & Baum, LLP, New York (Sagar Shah of counsel), for appellant.
The Chartwell Law Offices, LLP, New York (William H. Grae of counsel), for respondent.
Sweeny, J.P., Richter, Andrias, Webber, Moulton, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered December 19, 2016, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant satisfied its prima facie burden of establishing that the door that slammed shut on plaintiff's right foot was not a defective or dangerous condition. Defendant's expert established that the mechanism located at the top of the door was not defective and that it was not a device that was intended to hold the door open or prevent it from slamming shut. The expert also established that the door mechanism did not violate any code, regulation or standard (see Nielsen v. 300 E. 76th St. Partners, LLC, 111 A.D.3d 414, 974 N.Y.S.2d 246 [1st Dept. 2013] ; DeCarlo v. Village of Dobbs Ferry, 36 A.D.3d 749, 828 N.Y.S.2d 532 [2d Dept. 2007] ; Hunter v. Riverview Towers, 5 A.D.3d 249, 250, 773 N.Y.S.2d 290 [1st Dept. 2004] ).
In opposition, "plaintiff fail[ed] to submit any evidence that [the door was] actually defective or dangerous" ( Lezama v. 34–15 Parsons Blvd., LLC, 16 A.D.3d 560, 560, 792 N.Y.S.2d 123 [2d Dept. 2005] ). Specifically, plaintiff's expert's conclusion was not based on his own personal observations of the door mechanism, and he failed to establish that the door mechanism was maintained in violation of any specific code, regulation or standard (see Dos Santos v. Power Auth. of State of N.Y., 85 A.D.3d 718, 721, 924 N.Y.S.2d 558 [2d Dept 2011], lv denied 20 N.Y.3d 856, 2013 WL 105365 [2013] ; DeCarlo, 36 A.D.3d at 750, 828 N.Y.S.2d 532 ; Santoni v. Bertelsmann Prop., Inc., 21 A.D.3d 712, 714–715, 800 N.Y.S.2d 676 [1st Dept. 2005] ).
The doctrine of res ipsa loquitur is inapplicable to the facts of this case, inasmuch as the allegedly defective door—being part of plaintiff's own apartment—was not in defendant's exclusive control, and because it was equally plausible that the accident occurred due to plaintiff's comparative negligence (see Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226–228, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [1986] ; Meza v. 509 Owners LLC, 82 A.D.3d 426, 918 N.Y.S.2d 78 [1st Dept. 2011] ; Giordano v. Toys R Us, 276 A.D.2d 669, 714 N.Y.S.2d 746 [2d Dept. 2000] ).
We have considered plaintiff's remaining contentions and find them unavailing.