Mangano v Jewish Children's Museum

[*1] Mangano v Jewish Children's Museum 2009 NY Slip Op 51318(U) [24 Misc 3d 1208(A)] Decided on June 29, 2009 Supreme Court, Kings County Lewis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2009
Supreme Court, Kings County

Peter Mangano, Plaintiff,

against

The Jewish Children's Museum, Defendant.



29584/07



Plaintiff Attorney:

James Giannakouros, Esq

Defendant Attorney

Joseph F. Herbert III, Esq

Callan, Koster, Brady & Brennan, LLP

Yvonne Lewis, J.

On the 5th day of March, 2007, while following an unidentified customer out of the first floor gift shop of The Jewish Children's Museum (hereinafter, JCM) the plaintiff, Peter Mangano, alleges that he sustained serious and permanent injury when his left thumb got caught between the door and the door frame. JCM counters, however, that there is no evidence that the subject door was in any way defective, that it closed at an excessive rate of speed, that JCM caused or created any such condition, or had actual or constructive knowledge thereof. In addition, JCM asserts that in his examination before trial, Mr. Mangano admitted that it was windy at the time of the accident, that he had used the subject door on prior occasions, that he had neither noticed any problems therewith nor made any complaints with regards thereto, that he'd had occasion to observe the door in question prior to the date of the accident, and that he had never seen it slam or heard anyone complain about it. Furthermore, JCM's director of operations testified that he oversaw the physical structure of the building and its maintenance as part of his responsibilities, that the subject door had been installed approximately four years earlier, that there were no modifications to the door or any door-opening mechanism, that he'd received no complaints regarding the closing or opening of the same, and that there had been no accidents involving the door until the one alleged by Mr. Mangano. Consequently, JCM requests that it be granted summary judgment, pursuant to CPLR §3212, since Mr. Mangano has failed to establish any defect with the subject door, or that it caused or created any dangerous condition therewith, or that it had actual or constructive knowledge of any such condition.

The plaintiff, an employee of Champion Security, notes that he was in the process of installing security cameras and a security system at the time of the accident, and described, in graphic detail, that the crush injury sustained by him left him with a permanent deformity and [*2]disfigurement of his left thumb ". . .which necessitated surgery with repair of the nail bed and debridement of nonviable tissue, and a displaced fracture of the distal end of the distal phalanx of the left thumb." Counsel for Mr. Mangano argues that JCM has misstated his client's deposition, which clearly establishes ". . .not only that the door closed at an excessive rate of speed. . .clearly constituting a defective and hazardous condition, but also that the [d]efendant clearly would have known of this condition prior to Mr. Mangano's accident." In further support of that contention, plaintiff's counsel submitted the affidavit of a public engineer that he intends to call as an expert trial witness who, following his inspection of the subject door on the 17th day of October, 2007, found that ". . .the subject door's closer was not properly set to dampen and slow down the door's rate of closure, and that its unsafe closing speed was an unrecognized danger and hazard to pedestrians utilizing the doorway." Specifically, plaintiff's engineer indicated that "[t]he door was opened to a 90 degree angle (perpendicular to the building) and closed three (3) times to check the door's closing speed. In each case, the door closed in two (2) seconds and closed in a continuous sweeping motion, without any slow creeping , dampening, or sped retardation characteristics. The door exhibited a large force when closing." Plaintiff's engineer noted that the plaintiff, who had accompanied him for the inspection, advised him that the door had closed swifter and harder on the accident date. In addition, the engineer opined that "[a] proper, reasonable and somewhat regular inspection of the subject door. . .by the owner of the building and/or by those responsible for the maintenance and operation of the building and the subject door. . .would have revealed the aforesaid dangerous and defective condition. . . .Furthermore, an employee or person charged with the responsibility of overseeing the physical structure and maintenance of the building should have known of the defective condition of the subject door."

In reply, JCM argues that plaintiff's affidavit of merit, though seemingly signed by him, should be disregarded as the name in the opening attesting paragraph is not the plaintiff's, and that the engineer's assessment is irrelevant since his inspection was conducted some seven months following the accident, failed to indicate the type of closing device that is attached to the door, any inspection thereof, attempts to adjust the same, indicate how any adjustments could be made, or the precise standards that were not met. Finally, JCM asserts that the engineer's conclusions rather than establish any actual notice to it, ineffectually attempts to impute constructive knowledge.

"A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). ". . .[T]o establish its prima facie entitlement to judgment as a matter of law. . .[the defendant] needed to submit evidence that [it] neither created the condition which allegedly caused the plaintiff to [close his hand in its rear door], nor had actual or constructive notice of the allegedly dangerous condition" (see Vasta v. Home Depot, 2006 WL 197438 [NYAD2d], 2006 NY Slip Op. 00504; citing Bosman v. Reckson FS Ltd. Partnership, 15 AD3d 517, 790 NYS2d 201; Simmons v. Metropolitan Life Ins. Co., 84 NY2d 972, 622 NYS2d 496; Cody v. DiLorenzo, 304 AD2d 705, 757 NYS2d 789).

Here the defendant has made a prima facie showing of lack of notice on its part so as to preclude recovery by the plaintiff. It has done so on the attestation of its director of operations [*3]that it did not receive actual notice that the door closer was defective or that such defective condition existed for a sufficient period of time for defendant to have acquired constructive notice thereof (See Edwards v. 727 Throggs Neck Expressway, Inc., et al., 2005 WL 3489765 [NYAD1st Dept.], 2005 NY Slip Op. 10040, citing Matcovsky v. Days Hotel, 10 AD3d 557 [2004]).

Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra ).

While the defendant asserts that the plaintiff's expert engineer's assessment of the door in question was after the fact (seven months post accident), is lacking in thoroughness, fails to convincingly establish any form of notice and/or to adequately give rise to the existence of any credible material questions of fact sufficient to rebut its prima facie showing (See Stancil v. Supermarkets General, supra , citing Marcelle v. NY City Transit Auth., 289 AD2d 459 [2001]), this court disagrees. To the contrary, the court finds that though JCM has certainly highlighted ample grounds for cross-examination, the points raised do not entirely contradict plaintiff's expert testimony, especially given that JCM's director of operations never claimed to have conducted a thorough examination of the subject door on any regular basis.

Accordingly, the defendants' motion, pursuant to CPLR §3212, for an order granting summary judgment on the issue of liability as no triable issues of fact exist herein, and thereby to dismiss the plaintiff's complaint is denied in its entirety. This constitutes the decision and order of this Court.

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JSC