        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

239
CA 15-01289
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


TERRY SMITH, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

EUGENE SZPILEWSKI AND FELICIA SZPILEWSKI,
DEFENDANTS-APPELLANTS.


RODGERS LAW FIRM, BUFFALO (MARK C. RODGERS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (MICHAEL LANCER OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered March 12, 2015. The order
denied defendants’ motion for summary judgment dismissing plaintiff’s
complaint.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when a trap door came down onto her
head as she walked upstairs from the basement of the bar where she
worked. Defendants, the owners of the premises, moved for summary
judgment dismissing the complaint. Supreme Court denied the motion,
and we affirm. Defendants failed to meet their initial burden of
establishing as a matter of law that the door did not constitute a
dangerous condition in view of the absence of a latch or other
mechanism to secure it in the open position (see Daries v Haym Solomon
Home for Aged, 4 AD3d 447, 448; see generally Bielicki v Excel Indus.,
Inc., 104 AD3d 1318, 1319; Matter of Kania v Suchocki, 294 AD2d 926,
927), that they lacked actual or constructive notice of the allegedly
dangerous condition (see Rachlin v Michaels Arts & Crafts, 118 AD3d
1391, 1392-1393; Hanley v Affronti, 278 AD2d 868, 869; see generally
Harris v Seager, 93 AD3d 1308, 1308-1309), or that the allegedly
dangerous condition of the door was not a proximate cause of the
accident (see Mercedes v Menella, 34 AD3d 655, 656; Losurdo v Skyline
Assoc., L.P., 24 AD3d 1235, 1237; cf. Anilus v Realties, 206 AD2d 446,
447). “Given that defendant[s] failed to meet [their] initial burden,
we do not address [their] contention that the expert affidavit
submitted by plaintiff was insufficient to raise a triable issue of
fact” (Letts v Globe Metallurgical, Inc., 89 AD3d 1523, 1524; see
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
                                 -2-                           239
                                                         CA 15-01289

     Contrary to the position of the dissent, we conclude that the
record does not definitively establish that the alleged accident
resulted from a person intentionally closing the door. Plaintiff’s
theory of the case does not presuppose that the door was closed
intentionally, and her testimony that the wife of one of the bar’s
owners closed the door on her is based on hearsay and thus
insufficient to meet defendants’ motion burden (see Kramer v Oil
Servs., Inc., 56 AD3d 730, 730; Smilanich v Sauna Buffalo, 267 AD2d
1049, 1049; see generally Cox v State of New York, 3 NY2d 693, 698).
In any event, that testimony is contradicted by the testimony of the
bar owner in question that he was the one who closed the door at the
relevant time and that plaintiff was not on the stairs when he did so.

     All concur except CARNI, J., who dissents and votes to reverse in
accordance with the following memorandum: I respectfully dissent.
Initially, in order to prevail on a motion for summary judgment in a
premises liability case, a defendant is “ ‘required to establish as a
matter of law that [it] maintained the property in question in a
reasonably safe condition and that [it] neither created the allegedly
dangerous condition existing thereon nor had actual or constructive
notice thereof’ ” (Mokszki v Pratt, 13 AD3d 709, 710; see Richardson v
Rotterdam Sq. Mall, 289 AD2d 679, 679). I conclude that defendants
met that burden on their motion for summary judgment dismissing the
complaint, and that plaintiff failed to raise a triable issue of fact
(see Zuckerman v City of New York, 49 NY2d 557, 562).

     Plaintiff alleges that she was injured when someone closed a trap
door on her head as she was ascending a stairway from the basement in
the premises. The trap door had been in the same structural condition
and configuration since 1981. In support of their motion, defendants
established that the trap door opening was protected on two sides with
a steel tubular railing 1.5 inches in diameter that was installed
approximately nine years before the accident. A third side adjoined a
wall such that no foot traffic in the premises could possibly
encounter the opening or the opened trap door from that direction.
When the trap door, which weighed approximately 50 to 75 pounds, was
opened, it leaned against the steel railing. Defendants submitted the
deposition testimony of plaintiff, who was employed by the business at
the premises three days per week for four years prior to the accident.
Plaintiff testified that she opened and closed the trap door between
five and six times each day that she worked at the premises.
Moreover, plaintiff never observed or was otherwise aware of any
occasion when the trap door closed on its own without deliberate human
effort. On the day of the accident, plaintiff made at least three
prior trips to the basement through the trap door—all without
incident. Plaintiff testified that she had never had any trouble with
the door and never made, heard, or received any complaints about the
operation of the trap door. On her last trip to the basement,
plaintiff began to ascend the stairs after retrieving some frozen food
packages, and she alleges that the trap door came down and struck her
in the head. When asked at her deposition if she knew how the door
came down, plaintiff testified: “Lisa put it down. I was told and
she apologized. She said she didn’t see me going back down.”
Defendants also submitted the deposition testimony of Robert
                                 -3-                           239
                                                         CA 15-01289

Szpilewski (Robert), the owner of the business that occupied the
premises, who testified that he had operated the business on the
premises for 14 years and had operated the trap door “thousands of
times” before the accident. Robert testified that it is “close to
impossible” for a person to drop the trap door, and that it is “[not]
possible to be able to put [the] door down and not see somebody coming
up those stairs.” Robert testified that, when closing the trap door,
a person has to “stand at the top of the stairs to the left of the
rail so you’re facing down into the stairwell.” Robert never received
any complaints about the trap door prior to this incident. According
to Robert, and the co-owner of the business, Steven Szpilewski, during
the 14-year operation of the business, the trap door has only been
closed purposefully, and there has been no prior incident where a
person was struck by the trap door. Robert testified that, on the day
in question, he was the person who closed the door without knowing
that plaintiff was still in the basement, and that plaintiff was not
at the bottom of the stairs when he did so. Although plaintiff
alleges that Robert’s wife, Lisa Szpilewski, closed the door, Robert
confirmed that he was the person who closed the trap door before
plaintiff’s incident. In either case, the evidence is undisputed that
the trap door was not inadvertently bumped or accidently caused to
close. It was intentionally closed under either version.

     In summary, defendants established that the trap door had existed
in its date-of-accident condition for at least 14 years; it had been
operated thousands of times before the accident without incident or
complaint; it is not possible to close the door without having a clear
line of sight to the stairway below; it was closed intentionally on
the day of the accident and was not and could not be accidently or
inadvertently bumped closed. In my view, that evidence was sufficient
to satisfy defendants’ initial burden on their motion for summary
judgment dismissing the complaint to establish that the premises were
maintained in a reasonably safe condition and that the trap door was
not dangerous or defective (see Fallon v Duffy, 95 AD3d 1416, 1416-
1417; Lezama v 34-15 Parsons Blvd, LLC., 16 AD3d 560, 560-561; Hunter
v Riverview Towers, 5 AD3d 249, 249; Aquila v Nathan’s Famous, 284
AD2d 287, 287-288; Maldonado v Su Jong Lee, 278 AD2d 206, 206-207).

     In opposition, plaintiff submitted the affidavit of an engineer
who did not visit the premises to operate and inspect the trap door
and the stairway (see Hoffman v Brown, 109 AD3d 791, 792).
Additionally, inasmuch as there is no evidence that the trap door was
closed because it was accidentally “bumped,” the engineer’s opinion
concerning the absence of a means to prevent such an accidental
occurrence is irrelevant and without factual foundation. With respect
to the actual situation at hand, the engineer opined that a “latch or
mechanism to keep the door open would provide a moment of pause for
the person closing the door to see if somebody was coming up the
stairs before closing the door.” Inasmuch as plaintiff’s expert did
not actually operate or test the trap door, his assumption that there
is no “moment of pause” in its existing operation is without
foundation. Plaintiff’s expert also did not identify any engineering
or design standards in support of his opinions and cited no building
code provisions (see Lezama, 16 AD3d at 561; Maldonado, 278 AD2d at
                                 -4-                           239
                                                         CA 15-01289

207). More importantly, plaintiff’s expert did not identify any
specific “latch or mechanism” that was commercially available,
feasible to install, and capable of creating the “moment of pause” he
claimed was lacking (see generally McKeon v Sears, Roebuck & Co., 242
AD2d 503, 503-504). Therefore, in my view, the opinions of
plaintiff’s engineer were “unencumbered by any trace of facts or data
[and thus] should be given no probative force whatsoever” (Amatulli v
Delhi Constr. Corp., 77 NY2d 525, 533-534, n 2; see also Ramirez v
Sears, Roebuck & Co., 286 AD2d 428, 430).

     Turning to the issue of constructive notice, I note that it is
well established that, “[t]o constitute constructive notice, a defect
must be visible and apparent and it must exist for a sufficient length
of time prior to the accident to permit defendant[ ] . . . to discover
and remedy it” (Gordon v American Museum of Natural History, 67 NY2d
836, 837). Here, defendants established that the trap door had been
operated on a daily basis and opened and closed “thousands of times”
over 14 years without injury or complaint. Thus, in my view,
defendants also met their burden with respect to the lack of actual or
constructive notice and shifted the burden to plaintiff to raise a
triable issue of fact (see Anderson v Justice, 96 AD3d 1446, 1447-
1448; Fallon, 95 AD3d at 1416-1417). For the same reasons discussed
above, the affidavit of plaintiff’s engineer was also woefully
inadequate to raise an issue of fact with respect to notice.

     Therefore, I would reverse the order, grant defendants’ motion,
and dismiss the complaint.




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
