Opinion
Index No.: 8796/06
08-07-2013
TAMMY SCHEPIS, as Administrator of the Estate of SCOTT J. SCHEPIS, Plaintiff, v. ST. BARNABAS HOSPITAL, Defendant.
MEMORANDUM
DECISION/ORDER
HON. MARK FRIEDLANDER
Defendant, St Barnabas Hospital ("St. Barnabas") moves for an order, pursuant to CPLR§3212, dismissing plaintiff's complaint. Defendant's motion is decided as hereinafter indicated.
This is an action by the estate of the deceased plaintiff to recover monetary damages for personal injuries sustained by decedent on September 5, 2005, as a result of the purported negligence of the defendant.
The facts are not in dispute. The decedent, who weighed approximately 400 pounds at the time of the accident, was a New York City Police Officer. On September 7, 2005, decedent was guarding a patient/prisoner at St. Barnabas, Room 731-B. There were two chairs in the room, one near the door and one close to the window. These chairs had wood frames with vinyl cushions. Decedent sat in the chair nearest the door. His left leg was straight, his right leg was tucked under his left leg, and he did not change his position. At approximately 3:10 A.M., decedent had been continuously sitting in a chair for about an hour, when the chair broke, coming apart at the joints. Some of the wood dowels were cracked. However, decedent did not notice the cracked dowels until after the accident. Prior to the chair's breaking, it remained sturdy, but creaked a little for a second or two before the accident. Within a few minutes of the accident, a fellow Police Officer took photographs of the broken chair which decedent identified at his deposition.
In support of the motion, defendant submits a photocopy of the deposition transcript of the testimony of James Donovan ("Donovan"), taken on September 26, 2007. Donovan testified that he is employed by St. Barnabas as the Director of Environmental Services, a position he held since November, 1992. He is in charge of housekeeping, laundry and grounds department. In September, 2005, there were two types of chairs in patients' rooms, a high-back and a short back. Both types had vinyl upholstery and the arm rests and legs made of wood. The Nursing Department decided what type of chairs were to be used, which were then ordered by the Purchasing Department. In September, 2005, rounds were made on a monthly basis by various units of St. Barnabas (including Safety Department, Infection Control Department, Housekeeping, Engineering and Nursing), inspecting for such things as tripping hazards and damaged furniture, including chairs. Chairs were inspected to determine whether they were stable or wobbly. This would be done by putting a hand on the chair and moving it. If a chair was found to be defective, it would be sent to Housekeeping to remove the defective part and then repaired, or otherwise, discarded. This inspection would also entail a visual examination and if damage was noted, any tears in the upholstery would be addressed. Donovan had no idea of the weight capacity of the chairs. To Donovan's knowledge, the inspection did not include the bottom of the legs of the chairs. No complaints were received by Donovan for the two years prior to defendant's accident.
Defendant has demonstrated a prima facie of lack of actual or constructive notice of the alleged defective condition of the chair that broke, in view of plaintiff's testimony, that he sat on the chair for about an hour and it remained steady. Donovan's testimony established that there were no complaints about the chair for two years prior to plaintiff's accident, that the alleged defect was not apparent and visible, and that there was no evidence as to how the condition was created or how long it existed. Lawrence v. Gonzalez, 106 A.D.3d 462 (1 Dept. 2013).
Plaintiff asserts that the deposition transcripts submitted by plaintiff constitute inadmissible evidence as they are unsigned. An unsigned deposition transcript is still admissible as evidence if it was certified as accurate and no party challenges the accuracy of the testimony as transcribed. Martin v. City of New York, 82 A.D.3d 653 (1 Dept. 2011); White Knight LTD v. Shea, 10 A.D.3d 567 (1 Dept. 2004). Here, the deposition transcripts are duly certified and no one has challenged their accuracy.
The papers submitted by plaintiff in opposition to the motion, including the expert report/affidavit of Robert John Anders, IDSA, fail to raise a triable issue of fact. Anders' report acknowledges that there are no codes applicable to this matter. Anders attaches ANSA/BIFMA, X5.1 2002 General-Purpose Office Chairs - Tests. American National Standard for Office Furniture ("ANSA/BIFMA"), consisting of eighty-eight pages, including diagrams. However, nowhere in Anders' report does he cite a specific section of ("ANSA/BIFMA") to support his assertion that "the industry standard" requires that inspection of the subject chair include "racking" (moving a "machine mechanism" [sic] or part thereof, forwards and backwards). Anders' assertion that the adhesive used to connect the components of the chair failed as a result of it drying out over an extended period of time, and that this would have been apparent upon a proper inspection of the chair, constitutes speculation.
The doctrine of res ipsa loquitor is inapplicable. One of the elements of the doctrine is that the event must be caused by an agency or instrumentality within the exclusive control of the defendant. Here, the subject chair was located in the patient/prisoner room, where members of the general public had access to it. Lawrence v. Rockland County Bd. Of Coop. Educ. Servs., 93 A.D3d 766 (2 Dept. 2012); Hardesty v. Slice of Harlem, II, LLC, 79 A.D.3d 472 (1 Dept. 2010); Loiacono v. Stuyvesant Bagels, Inc., 29 A.D.3d 537 (2 Dept. 2006).
Based upon the foregoing, defendant's motion is granted and plaintiff's complaint is dismissed.
The foregoing constitutes the Decision and Order of the Court.
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MARK FRIEDLANDER, J.S.C.