Opinion
CA 02-00689
November 15, 2002.
Appeal from an order of Supreme Court, Monroe County (Bergin, J.), entered February 21, 2001, which denied defendant's motion for summary judgment dismissing the complaint.
BROWN HUTCHINSON, ROCHESTER (T. ANDREW BROWN OF COUNSEL), FOR DEFENDANT-APPELLANT.
TREVETT, LENWEAVER SALZER, P.C., ROCHESTER (CYNTHIA A. CONSTANTINO GLEASON OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum:
Robyn Bunce (plaintiff) was injured when her foot was caught in an automatic revolving door at a building owned by defendant. Plaintiff, who worked in defendant's building, had swiped her employee pass card in the device that activates that door and stepped into the door's compartment. When the door failed to activate, plaintiff stepped partially out of the compartment and swiped her card again. The door began to revolve and a person standing outside the door unsuccessfully attempted to pull plaintiff from the door's compartment before the door closed on her. Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. Defendant submitted proof establishing that it neither "affirmatively created the [alleged defective] condition [n]or had actual or constructive notice of its existence" ( Hanley v. Affronti, 278 A.D.2d 868, 869). Even assuming, arguendo, that plaintiffs raised an issue of fact with respect to the existence of a defective condition in the door, we agree with defendant that plaintiffs failed to raise an issue of fact whether defendant created that condition, whether defendant had actual notice of it or whether it was "`visible and apparent and * * * exist[ed] for a sufficient length of time prior to the accident to permit defendant * * * to discover and remedy it'" ( Appleby v. Webb, 186 A.D.2d 1078, 1078, citing Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837). We therefore reverse the order, grant the motion and dismiss the complaint.