Opinion
No. 84 SSM 4.
Decided March 29, 2007.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered November 17, 2006. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Monroe County (David D. Egan, J), which had granted defendants' motion for summary judgment dismissing the complaint in action No. 1 and the amended complaint in action No. 2 and denied plaintiffs' cross motion for partial summary judgment on the issue of negligence in action Nos. 1 and 2.
Plaintiffs commenced these actions seeking damages for injuries sustained when the injured plaintiff allegedly was struck by an automatic door while standing on the door jamb at defendant's outlet store.
The Appellate Division majority concluded that defendants met their burden by establishing that they did not create the alleged dangerous condition; that they lacked actual or constructive notice of it; that plaintiffs failed to raise an issue of fact; and that plaintiffs' expert's opinion was purely speculative and, thus, lacked sufficient probative force to constitute prima facie evidence that the automatic door was not reasonably safe for its intended use.
Zona v JELD-WEN, Inc., 34 AD3d 1189, affirmed.
Osborn, Reed Burke, LLP, Rochester ( Thomas J.) Rzepka of counsel), for appellants.
Hodgson Russ LLP, Albany ( Noreen DeWire Grimmick of counsel), for respondents.
Before: Concur: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division ( 34 AD3d 1189).