Opinion
December 3, 1970
Appeal from an order of the Supreme Court at Special Term, entered October 28, 1969 in Schenectady County, which denied a motion for summary judgment dismissing the complaint. Defendant owned a multiple residence structure at 131 Park Place in the City of Schenectady, the first floor of which was occupied by the Stockman family. With his hands full with various items, Clarence Stockman, 18 years old and over six feet tall, was attempting to leave the building through a windowed hallway door, which could be opened only by turning a latch. He kicked the bottom of the door in an attempt to attract a friend's attention and, in turning fast, his elbow hit one of the door's two panes of glass, glass flew and some went into the eye of the infant plaintiff, as she waited immediately outside the door for Peachie Stockman, a playmate. The eye has since been removed. Assuming that the door was in an area subject to the landlord's control (see Sciolaro v. Asch, 198 N.Y. 77, 81-82; Restatement, 2d, Torts, §§ 360, 361) and recognizing defendant's duty to the infant plaintiff as a guest of a tenant (see Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 446), plaintiffs have failed to establish a genuine issue of fact as to defendant's negligence proximately causing this most unfortunate accident. On deposition, Clarence Stockman testified that he turned fast, hit the window with his elbow and that this knocked the pane out, the glass falling outside. Upon being asked whether he put his hand or arm through the window, the infant plaintiff replied, "Yes, he put his hand on the window and it broke." True, upon being asked whether the lower glass pane of the door on the day in question was intact, solid or cracked, Stockman answered "There was nothing wrong, it just used to shake just a little. When you shut the door you could hear it shake just a little. It was in good condition." Special Term held that there was at least an arguable issue of fact as to defendant's maintenance of the door but the gist of Stockman's answer is that the door was in good condition. Even if the window did "shake just a little" when the door closed, the shaking played no part in the breaking. The evidence submitted demonstrates that the door did not move and that the glass broke when the young man turned fast and knocked it out with his elbow. The affidavit of plaintiff's counsel, containing conclusions, repeating allegations of the bill of particulars and not based on personal knowledge, was insufficient to create an issue of fact ( Davis v. Shelton, 33 A.D.2d 707, 708). While summary judgment is granted infrequently in negligence actions, the remedy should be granted without hesitation where there is no merit to the cause of action. When defendant presented factual proof that the accident was caused by the acts of a person for which defendant was not liable, plaintiffs were required to come forward with evidentiary data indicating a legally responsible link between defendant and the injuries sustained. Surmise or suspicion not founded on evidentiary facts should not bar relief to defendant. There was no genuine issue and nothing in truth to be tried (cf. Rubin v. Irving Trust Co., 305 N.Y. 288, 306). Order reversed, on the law, and motion for summary judgment dismissing the complaint granted, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.