Opinion
No. 146 SSM 13.
Decided June 4, 2009.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered October 21, 2008. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, New York County (Debra A. James, J.), entered upon a jury verdict in favor of plaintiffs and against defendants, and (2) dismissed the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the [judgment] of the Supreme Court, properly made?"
Plaintiff school employee was injured when he was hit in the head with a swinging door while exiting the building during a fire drill. The basis for the jury's verdict against defendants was plaintiffs' claim that the swinging double doors were negligently designed. At trial, plaintiffs' expert relied on "human factors" design standards in asserting that the design of the doors was unsafe.
The Appellate Division concluded that plaintiffs' expert failed to establish that the "human factors" design industry standards he relied upon were published or in general acceptance in the building construction industry when the school was built; and that since the expert's testimony failed to support plaintiffs' claim, plaintiffs failed, as a matter of law, to make out a prima facie case of negligent design.
Hotaling v City of New York, 55 AD3d 396, affirmed.
Breakstone Laic Firm, P.C., Bellmore ( Jay L.T. Breakstone of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York City ( Cheryl Payer and Stephen J. McGrath of counsel), for respondents.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs. The certified question should not be answered as unnecessary.
The Appellate Division properly held that the testimony of plaintiffs' expert was insufficient, as a matter of law, to support a prima facie case of negligent design ( see generally Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9).
Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum; Chief Judge LIPPMAN taking no part.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.