Lewisv.MBD Silva Taylor Hous. Dev. Fund Co.

Supreme Court, Appellate Division, First Department, New York.May 10, 2018
77 N.Y.S.3d 356 (N.Y. App. Div. 2018)
77 N.Y.S.3d 356161 A.D.3d 489

6507 Index 307106/13


Sasha LEWIS, Plaintiff–Respondent, v. MBD SILVA TAYLOR HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants–Appellants.

London Fischer LLP, New York (David B. Franklin of counsel), for appellants. Subin Associates, LLP, New York (Robert J. Eisen of counsel), for respondent.

London Fischer LLP, New York (David B. Franklin of counsel), for appellants.

Subin Associates, LLP, New York (Robert J. Eisen of counsel), for respondent.

Richter, J.P., Manzanet–Daniels, Webber, Oing, Moulton, JJ.

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about October 17, 2017, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

The record demonstrates as a matter of law that defendants, the building owners, the project manager and general contractor for a renovation project, and the subcontractor that installed the bi-fold closet door that came apart at the hinges and fell on plaintiff as she tried to open it, did not negligently manufacture or design the closet doors. The evidence is unrefuted that the closet doors were selected by the project architect and fabricated by an outside manufacturer, which pre-installed the door hinges.

Defendants established prima facie that they did not have actual or constructive notice of any defect in the closet doors after their installation by showing that plaintiff did not notify the building owner or management company of any problems with the doors in her apartment before her accident (see Briggs v. 2244 Morris L.P., 30 A.D.3d 216, 817 N.Y.S.2d 239 [1st Dept. 2006] ; Bean v. Ruppert Towers Hous. Co., 274 A.D.2d 305, 308, 710 N.Y.S.2d 575 [1st Dept. 2000] ). Plaintiff failed to raise an issue of fact.

The only defendant that could have created the alleged defective condition was Jasmine Construction and Restoration (sued as Jamie), the subcontractor that installed the doors. Jasmine established prima facie that it properly installed the doors through an affidavit by its owner, Ivan Miller, who averred that he had installed hundreds of these closet doors pursuant to the instruction manual without problem and that he ensured that they were properly secured, correctly sized, and properly adjusted. Miller further averred that after he installed the doors at issue, he tested each one by "repeatedly" opening and closing it to ensure its safety and proper function (see e.g. Lezama v. 34–15 Parsons Blvd., LLC, 16 A.D.3d 560, 792 N.Y.S.2d 123 [2d Dept. 2005] ).

In opposition, plaintiff failed to raise an issue of fact as to whether the bi-fold doors were properly installed. Her expert's opinion that Jasmine should have further tested the doors was unsupported by reference to any specific, applicable safety standards or practices (see Buchholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 8–9, 798 N.Y.S.2d 715, 831 N.E.2d 960 [2005] ; Cassidy v Highrise Hoisting & Scaffolding, Inc., 89 A.D.3d 510, 511, 932 N.Y.S.2d 456 [1st Dept. 2011] ).

Plaintiff's reliance on the doctrine of res ipsa loquitur is unavailing, since defendants were not in "exclusive control" of the closet doors, which were located within plaintiff's apartment (see Pintor v. 122 Water Realty, LLC, 90 A.D.3d 449, 451, 933 N.Y.S.2d 679 [1st Dept. 2011] ; cf. Pavon v. Rudin, 254 A.D.2d 143, 146–147, 679 N.Y.S.2d 27 [1st Dept. 1998] [landlord not responsible for injury caused by door falling on office cleaner in premises leased to commercial tenant] ).