State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 14, 2015 519726 

________________________________

SALLY ROBERTS,

Respondent,

v MEMORANDUM AND ORDER

UNITED HEALTH SERVICES

HOSPITALS, INC.,

Appellant.

________________________________

Calendar Date: March 26, 2015

Before: Peters, P.J., Lahtinen, Rose and Devine, JJ.

__________

Levene Gouldin & Thompson, LLP, Binghamton (Lauren A.

Saleeby of counsel), for appellant.

Greene & Reid, PLLC, Syracuse (Eugene W. Lane of counsel),

for respondent.

__________

Peters, P.J.

Appeal from an order of the Supreme Court (Reynolds

Fitzgerald, J.), entered July 14, 2014 in Broome County, which

denied defendant's motion for summary judgment dismissing the

complaint.

On August 31, 2007, plaintiff accompanied her father to the

emergency department of a hospital operated by defendant in the

Village of Johnson City, Broome County. Several hours later,

plaintiff exited the emergency department through a set of

automatic doors that led into a waiting area to access a vending

machine. According to plaintiff, when she attempted to reenter

the emergency department's treatment area by manually opening the

doors, she was unable to maintain her grasp of the door handle
-2- 519726 

due to the weight of the door, causing her to lose her balance

and fall to the ground. She thereafter commenced this personal

injury action alleging that defendant was negligent in, among

other things, permitting the subject doors to remain in a

dangerous and unsafe condition and failing to provide an

accessible push plate to automatically open the doors. Following

joinder of issue and discovery, defendant moved for summary

judgment dismissing the complaint. Finding that defendant failed

to satisfy its initial burden of establishing its prima facie

entitlement to summary judgment, Supreme Court denied the motion.

Defendant appeals, and we affirm.

To prevail on its motion for summary judgment, defendant

was required to establish, as a matter of law, that it maintained

the premises in a reasonably safe condition and that it neither

created nor had actual or constructive notice of the allegedly

dangerous condition existing thereon (see Feuerherm v Grodinsky,

124 AD3d 1189, 1190 [2015]; Dillenbeck v Shovelton, 114 AD3d

1125, 1126 [2014]; Vincent v Landi, 101 AD3d 1565, 1566 [2012]). 

In support of the motion, defendant principally relied on the

affidavit of George Haus, a licensed architect who conducted an

inspection of the doors over two years after the incident. Haus

opined that the doors were in compliance with the applicable

building code, specifically finding, as relevant here, that the

opening pressure of the doors was within normal limits and that

nothing in the code required the presence of a push plate for

purposes of opening the doors automatically. Whether the doors

complied with the building code is not, however, dispositive of

plaintiff's claim, which is premised on common-law negligence

principles (see Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872

[1995]; Cook v Indian Brook Vil., Inc., 100 AD3d 1247, 1248

[2012]; Wilson v Proctors Theater & Arts Ctr. & Theater of

Schenectady, 223 AD2d 826, 828-829 [1996]). Moreover, no

evidence was provided that the condition of the doors at the time

of Haus's inspection was the same as that which existed at the

time of the accident (see Fallon v Duffy, 95 AD3d 1416, 1417-1418

[2012]; DeCarlo v Village of Dobbs Ferry, 36 AD3d 749, 750

[2007]; Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 680-681
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[2001]).1 

Defendant also failed to meet its legal burden of

establishing that it did not have notice of the allegedly

dangerous condition. While there was evidence that the doors at

issue were subject to periodic preventative maintenance

inspections by both a third party and the hospital's maintenance

department, no affirmative proof was presented that defendant had

not received any complaints regarding the doors prior to the

accident (see Barley v Robert J. Wilkins, Inc., 122 AD3d 1116,

1118 [2014]; Cook v Indian Brook Vil., Inc., 100 AD3d at 1248;

compare Donnelly v St. Agnes Cathedral Sch., 106 AD3d 773, 773-

774 [2013]; DeCarlo v Village of Dobbs Ferry, 36 AD3d at 750;

Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560, 560 [2005]). As

defendant failed to establish its entitlement to summary judgment

as a matter of law, we need not examine the sufficiency of

plaintiff's submissions in opposition (see Barley v Robert J.

Wilkins, Inc., 122 AD3d at 1119; Cook v Indian Brook Vil., Inc.,

100 AD3d at 1248).

Lahtinen, Rose and Devine, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 Rather, the hospital's engineering supervisor testified

that the subject doors might have been replaced since plaintiff's

fall in 2007 "because they get beat up quite a bit," and

defendant's senior vice-president and chief operating officer

indicated that the area surrounding the doors in question

underwent a significant construction project in 2009 and was

unsure as to whether any changes were made to the doors during

that time.