Appeals from an order of the Supreme Court, New York County (Debra A. James, J.), entered February 13, 2009, which, to the extent appealed from, denied defendants United Cerebral Palsy of New York City, Inc. and United Cerebral [sic] of New York City Community Mental Retardation Services Company, Inc.'s motion for summary judgment dismissing the complaint, or, in the alternative, for conditional summary judgment on their common-law indemnification claims against third-party defendants Miric Industries Incorporated and Reliable Door Corp.; denied Miric's cross motion for summary judgment dismissing plaintiff's complaint and the third-party complaint; and denied Reliable's cross motion for summary judgment dismissing the third-party complaint.
The opinion of the court was delivered by: Richter, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Luis A. Gonzalez, P.J., Peter Tom, Richard T. Andrias, Eugene Nardelli, Rosalyn H. Richter, JJ.
On December 5, 2003, plaintiff Sianna Singh was walking with a colleague in an enclosed walkway between two buildings owned and occupied by defendants United Cerebral Palsy of New York City, Inc. and United Cerebral [sic] of New York City Community Mental Retardation Services Company, Inc. (collectively UCP). The automatic swinging doors leading into the second building were open as plaintiff approached. Plaintiff's colleague, who was walking one or two steps ahead of plaintiff, walked through the doors without incident. As plaintiff walked through, the doors allegedly closed and hit her on her right and left shoulders, causing injury. According to plaintiff, the automatic doors' motion sensor, which was mounted over the top of the doors, was defective because it failed to detect her as she walked through the doorway.
It is undisputed that UCP's maintenance staff was not responsible for doing repairs on the automatic doors or the sensor mechanism. Instead, UCP contacted defendant/third-party defendant Miric Industries Incorporated on an as-needed basis to perform work at the building*fn1. If Miric received a call about the doors, Miric called third-party defendant Reliable Door Corp. to actually perform the work. Although Reliable's witness did not recall making any repairs on the doors, an invoice dated May 14, 2002 indicates that Reliable adjusted the motion sensor on that date.
Plaintiff alleges that UCP had both actual and constructive notice of the alleged defect in the automatic doors and was otherwise negligent in failing to conduct regular inspections of the doors. In particular, plaintiff contends that UCP failed to maintain proper alignment of the electronic beam that causes the doors to open and close. In addition, plaintiff invokes the doctrine of res ipsa loquitur, contending that this type of accident would not normally occur absent negligence. UCP commenced a third-party action against Miric and Reliable, asserting claims for contribution or indemnification or both.
UCP moved for summary judgment dismissing plaintiff's complaint or in the alternative for conditional summary judgment on its common-law indemnification claims against Miric and Reliable. Miric cross-moved for summary judgment dismissing the complaint and the third-party complaint as against it, and Reliable cross-moved for summary judgment dismissing the third-party complaint as against it. Supreme Court denied all the motions. We modify to the extent of granting Miric's cross motion for summary judgment.
A property owner is subject to liability for a defective condition on its premises if a plaintiff demonstrates that the owner either created the alleged defect or had actual or constructive notice of it (Mandel v 370 Lexington Ave., LLC, 32 AD3d 302, 303 ). To charge a defendant with constructive notice, the defect must be visible and apparent, and must exist for a sufficient length of time before the accident to permit the defendant's employees to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ).
UCP met its burden of showing that it neither created nor had actual or constructive notice of the alleged defect in the doors' sensor mechanism, and plaintiff failed to raise an issue of fact in opposition (see Narvaez v New York City Hous. Auth., 62 AD3d 419 , lv denied 13 NY3d 703 ; Clark v New York City Hous. Auth., 7 AD3d 440 ). Sam Radoncic, UCP's building services director, testified at his deposition that he was responsible for addressing complaints about the doors. Radoncic, who passed through the doors several times each week, never observed them malfunction in any way. Nor in the five years before plaintiff's accident did anyone inform Radoncic of any incidents where the doors closed on someone.
Although plaintiff claims to have observed problems with the automatic doors at some time prior to her accident, she conceded that she never complained to her supervisor or to the maintenance personnel at UCP. Likewise, there is no evidence that plaintiff's co-workers, who, according to plaintiff, "got stuck" between the doors, made any complaints about those incidents (see Levine v City of New York, 67 AD3d 510 ).
Plaintiff's claim that UCP was negligent in failing to conduct regular inspections of the motion sensor is unavailing. The duty of a property owner to reasonably inspect premises arises in situations distinct from the facts here, such as where a statute imposes the duty (see Watson v City of New York, 184 AD2d 690 ; Showverer v Allerton Assoc., 306 AD2d 144 ) or where an object capable of deteriorating is concealed from view (see Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 501 , lv denied 9 NY3d 809 ). Moreover, although plaintiff's expert identified the defect as the inadequate positioning of the sensor, there was no showing that a routine inspection would have uncovered that specific problem (see Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798, 800  ["failure to make a diligent inspection constitutes negligence only if such an inspection would have disclosed the defect" (internal quotation marks and citation omitted)]). Thus, we decline to find, under these circumstances, that UCP had a duty to regularly inspect the sensor mechanism.
Nevertheless, we conclude that plaintiff raised issues of fact as to the applicability of the doctrine of res ipsa loquitur. In order to submit a case to a trier of fact based on this theory of negligence, a plaintiff must establish that the event (1) was of a kind that "ordinarily does not occur in the absence of someone's negligence; (2) [was] caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) [was not] due to any voluntary action or contribution on the part of the plaintiff" (Morejon v Rais Constr. Co., 7 NY3d 203, 209  [internal quotation marks and citations ...