Opinion
CA 03-00345
October 2, 2003.
Appeal from an order of Supreme Court, Erie County (Mintz, J.), entered April 29, 2002, which granted defendant's motion for summary judgment dismissing the complaint.
DEMPSEY DEMPSEY, BUFFALO (HELEN KANEY DEMPSEY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA LLP, BUFFALO (JULIE PASQUARIELLO APTER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: GREEN, J.P., PINE, WISNER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action seeking damages for personal injuries she sustained while working as a waitress at a restaurant that had been previously remodeled by defendant, asserting causes of action for negligence, breach of contract, and strict products liability. Plaintiff was injured when she attempted to walk through a swinging door into the restaurant kitchen at the same time that a coworker attempted to walk in the opposite direction through the same swinging door. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Contrary to the contention of plaintiff, defendant did not owe a duty to her with respect to work it contracted to perform for her employer ( see Jackson v Lehigh Constr. Group, 299 A.D.2d 836, lv denied 99 N.Y.2d 511). Moreover, defendant met its initial burden of establishing that it did not "negligently create or exacerbate a dangerous condition" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 142; see Church v Callanan Indus., 99 N.Y.2d 104, 111), and plaintiff failed to raise a triable issue of fact. In remodeling the restaurant owned by plaintiff's employer, defendant used the same swinging door to access the kitchen as was there before the remodeling.