Raimondo v. St. Andrew's Roman Catholic Church Society

Feb 4, 1998
Versions:247 A.D.2d 875
668 N.Y.S.2d 808
1998 N.Y. App. Div. LEXIS 1201

Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. Stella R. Raimondo (plaintiff) was standing on a concrete pad outside defendant’s church hall after a bingo game. She was knocked to the ground by a door that was opened from inside the church hall; she sustained a broken ankle that required surgery. The door that hit plaintiff had no window and had a wider sweep than the concrete pad on which she was standing. Although defendant met its initial burden, plaintiffs presented evidentiary proof in admissible form sufficient to raise an issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562). They submitted an affidavit of a certified property and shopping center manager, who concluded after viewing and measuring the area that the lack of a code-approved window in the door and the lack of warning signs or lines created an unsafe and hazardous condition. Contrary to defendant’s contention, that affidavit was not entirely conclusory (cf., Bouter v Durand-Wayland, Inc., 221 AD2d 902). The property and shopping center manager referred to custom and practice (cf., Wessels v Service Mdse., 187 AD2d 837), and his opinion is based upon knowledge acquired through his personal professional experience (see, Romano v Stanley, 90 NY2d 444, 452). Additionally, plaintiffs provided the hearsay statement of the woman who opened the door, which statement may be characterized as an excited utterance and may, therefore, be admissible at trial (see generally, Phillips v Kantor & Co., 31 NY2d 307, 311-312; Herstand & Co. v Gallery: Gertrude Stein, Inc., 211 AD2d 77, 82-83).

We reject defendant’s argument that there was no duty to warn because the defect, if any, was obvious and apparent (see, Morgan v Genrich, 239 AD2d 919). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.)

Present — Pine, J. P., Hayes, Wisner, Boehm and Fallon, JJ.