SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

239 

CA 15-01289 

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ. 

 

TERRY SMITH, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

EUGENE SZPILEWSKI AND FELICIA SZPILEWSKI, 

DEFENDANTS-APPELLANTS. 

 

RODGERS LAW FIRM, BUFFALO (MARK C. RODGERS OF COUNSEL), FOR

DEFENDANTS-APPELLANTS.

COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (MICHAEL LANCER OF COUNSEL),

FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Niagara County

(Richard C. Kloch, Sr., A.J.), entered March 12, 2015. The order

denied defendants’ motion for summary judgment dismissing plaintiff’s

complaint. 

It is hereby ORDERED that the order so appealed from is affirmed

without costs.

Memorandum: Plaintiff commenced this action seeking damages for

injuries she allegedly sustained when a trap door came down onto her

head as she walked upstairs from the basement of the bar where she

worked. Defendants, the owners of the premises, moved for summary

judgment dismissing the complaint. Supreme Court denied the motion,

and we affirm. Defendants failed to meet their initial burden of

establishing as a matter of law that the door did not constitute a

dangerous condition in view of the absence of a latch or other

mechanism to secure it in the open position (see Daries v Haym Solomon

Home for Aged, 4 AD3d 447, 448; see generally Bielicki v Excel Indus.,

Inc., 104 AD3d 1318, 1319; Matter of Kania v Suchocki, 294 AD2d 926,

927), that they lacked actual or constructive notice of the allegedly

dangerous condition (see Rachlin v Michaels Arts & Crafts, 118 AD3d

1391, 1392-1393; Hanley v Affronti, 278 AD2d 868, 869; see generally

Harris v Seager, 93 AD3d 1308, 1308-1309), or that the allegedly

dangerous condition of the door was not a proximate cause of the

accident (see Mercedes v Menella, 34 AD3d 655, 656; Losurdo v Skyline

Assoc., L.P., 24 AD3d 1235, 1237; cf. Anilus v Realties, 206 AD2d 446,

447). “Given that defendant[s] failed to meet [their] initial burden,

we do not address [their] contention that the expert affidavit

submitted by plaintiff was insufficient to raise a triable issue of

fact” (Letts v Globe Metallurgical, Inc., 89 AD3d 1523, 1524; see

Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). 
-2- 239 

CA 15-01289 

Contrary to the position of the dissent, we conclude that the

record does not definitively establish that the alleged accident

resulted from a person intentionally closing the door. Plaintiff’s

theory of the case does not presuppose that the door was closed

intentionally, and her testimony that the wife of one of the bar’s

owners closed the door on her is based on hearsay and thus

insufficient to meet defendants’ motion burden (see Kramer v Oil

Servs., Inc., 56 AD3d 730, 730; Smilanich v Sauna Buffalo, 267 AD2d

1049, 1049; see generally Cox v State of New York, 3 NY2d 693, 698). 

In any event, that testimony is contradicted by the testimony of the

bar owner in question that he was the one who closed the door at the

relevant time and that plaintiff was not on the stairs when he did so.

All concur except CARNI, J., who dissents and votes to reverse in

accordance with the following memorandum: I respectfully dissent. 

Initially, in order to prevail on a motion for summary judgment in a

premises liability case, a defendant is “ ‘required to establish as a

matter of law that [it] maintained the property in question in a

reasonably safe condition and that [it] neither created the allegedly

dangerous condition existing thereon nor had actual or constructive

notice thereof’ ” (Mokszki v Pratt, 13 AD3d 709, 710; see Richardson v

Rotterdam Sq. Mall, 289 AD2d 679, 679). I conclude that defendants

met that burden on their motion for summary judgment dismissing the

complaint, and that plaintiff failed to raise a triable issue of fact

(see Zuckerman v City of New York, 49 NY2d 557, 562).

Plaintiff alleges that she was injured when someone closed a trap

door on her head as she was ascending a stairway from the basement in

the premises. The trap door had been in the same structural condition

and configuration since 1981. In support of their motion, defendants

established that the trap door opening was protected on two sides with

a steel tubular railing 1.5 inches in diameter that was installed

approximately nine years before the accident. A third side adjoined a

wall such that no foot traffic in the premises could possibly

encounter the opening or the opened trap door from that direction. 

When the trap door, which weighed approximately 50 to 75 pounds, was

opened, it leaned against the steel railing. Defendants submitted the

deposition testimony of plaintiff, who was employed by the business at

the premises three days per week for four years prior to the accident. 

Plaintiff testified that she opened and closed the trap door between

five and six times each day that she worked at the premises. 

Moreover, plaintiff never observed or was otherwise aware of any

occasion when the trap door closed on its own without deliberate human

effort. On the day of the accident, plaintiff made at least three

prior trips to the basement through the trap door—all without

incident. Plaintiff testified that she had never had any trouble with

the door and never made, heard, or received any complaints about the

operation of the trap door. On her last trip to the basement,

plaintiff began to ascend the stairs after retrieving some frozen food

packages, and she alleges that the trap door came down and struck her

in the head. When asked at her deposition if she knew how the door

came down, plaintiff testified: “Lisa put it down. I was told and

she apologized. She said she didn’t see me going back down.” 

Defendants also submitted the deposition testimony of Robert
-3- 239 

CA 15-01289 

Szpilewski (Robert), the owner of the business that occupied the

premises, who testified that he had operated the business on the

premises for 14 years and had operated the trap door “thousands of

times” before the accident. Robert testified that it is “close to

impossible” for a person to drop the trap door, and that it is “[not]

possible to be able to put [the] door down and not see somebody coming

up those stairs.” Robert testified that, when closing the trap door,

a person has to “stand at the top of the stairs to the left of the

rail so you’re facing down into the stairwell.” Robert never received

any complaints about the trap door prior to this incident. According

to Robert, and the co-owner of the business, Steven Szpilewski, during

the 14-year operation of the business, the trap door has only been

closed purposefully, and there has been no prior incident where a

person was struck by the trap door. Robert testified that, on the day

in question, he was the person who closed the door without knowing

that plaintiff was still in the basement, and that plaintiff was not

at the bottom of the stairs when he did so. Although plaintiff

alleges that Robert’s wife, Lisa Szpilewski, closed the door, Robert

confirmed that he was the person who closed the trap door before

plaintiff’s incident. In either case, the evidence is undisputed that

the trap door was not inadvertently bumped or accidently caused to

close. It was intentionally closed under either version.

In summary, defendants established that the trap door had existed

in its date-of-accident condition for at least 14 years; it had been

operated thousands of times before the accident without incident or

complaint; it is not possible to close the door without having a clear

line of sight to the stairway below; it was closed intentionally on

the day of the accident and was not and could not be accidently or

inadvertently bumped closed. In my view, that evidence was sufficient

to satisfy defendants’ initial burden on their motion for summary

judgment dismissing the complaint to establish that the premises were

maintained in a reasonably safe condition and that the trap door was

not dangerous or defective (see Fallon v Duffy, 95 AD3d 1416, 1416-

1417; Lezama v 34-15 Parsons Blvd, LLC., 16 AD3d 560, 560-561; Hunter

v Riverview Towers, 5 AD3d 249, 249; Aquila v Nathan’s Famous, 284

AD2d 287, 287-288; Maldonado v Su Jong Lee, 278 AD2d 206, 206-207).

In opposition, plaintiff submitted the affidavit of an engineer

who did not visit the premises to operate and inspect the trap door

and the stairway (see Hoffman v Brown, 109 AD3d 791, 792). 

Additionally, inasmuch as there is no evidence that the trap door was

closed because it was accidentally “bumped,” the engineer’s opinion

concerning the absence of a means to prevent such an accidental

occurrence is irrelevant and without factual foundation. With respect

to the actual situation at hand, the engineer opined that a “latch or

mechanism to keep the door open would provide a moment of pause for

the person closing the door to see if somebody was coming up the

stairs before closing the door.” Inasmuch as plaintiff’s expert did

not actually operate or test the trap door, his assumption that there

is no “moment of pause” in its existing operation is without

foundation. Plaintiff’s expert also did not identify any engineering

or design standards in support of his opinions and cited no building

code provisions (see Lezama, 16 AD3d at 561; Maldonado, 278 AD2d at
-4- 239 

CA 15-01289 

207). More importantly, plaintiff’s expert did not identify any

specific “latch or mechanism” that was commercially available,

feasible to install, and capable of creating the “moment of pause” he

claimed was lacking (see generally McKeon v Sears, Roebuck & Co., 242

AD2d 503, 503-504). Therefore, in my view, the opinions of

plaintiff’s engineer were “unencumbered by any trace of facts or data

[and thus] should be given no probative force whatsoever” (Amatulli v

Delhi Constr. Corp., 77 NY2d 525, 533-534, n 2; see also Ramirez v

Sears, Roebuck & Co., 286 AD2d 428, 430). 

Turning to the issue of constructive notice, I note that it is

well established that, “[t]o constitute constructive notice, a defect

must be visible and apparent and it must exist for a sufficient length

of time prior to the accident to permit defendant[ ] . . . to discover

and remedy it” (Gordon v American Museum of Natural History, 67 NY2d

836, 837). Here, defendants established that the trap door had been

operated on a daily basis and opened and closed “thousands of times”

over 14 years without injury or complaint. Thus, in my view,

defendants also met their burden with respect to the lack of actual or

constructive notice and shifted the burden to plaintiff to raise a

triable issue of fact (see Anderson v Justice, 96 AD3d 1446, 1447-

1448; Fallon, 95 AD3d at 1416-1417). For the same reasons discussed

above, the affidavit of plaintiff’s engineer was also woefully

inadequate to raise an issue of fact with respect to notice. 

Therefore, I would reverse the order, grant defendants’ motion,

and dismiss the complaint. 

Entered: May 6, 2016 Frances E. Cafarell

Clerk of the Court