In the matter sub judice the plaintiff, Mr. Jaru Young, contends that on April 15, 2001, the rear entrance door of the defendant's premises, at 2075 Rockaway Boulevard, Brooklyn, NY (commonly known as the Bayview Houses), closed on his right hand causing him to suffer a crush injury to his right dominant thumb, requiring surgery and partial amputation as a result of the defendant's negligent installation and maintenance of the door closer which leaked fluid and, accordingly, closed too quickly.

Defendant, New York City Housing Authority (hereinafter NYCHA), by its attorney, has moved this court for an order dismissing the plaintiff's complaint by a grant of summary judgment on the issue of liability as no triable issues of fact exist herein; i.e., the plaintiff has failed to demonstrate that it had created or been given notice of any such defective condition. In support of its position, NYCHA points to the following facts; to wit, 1. the plaintiff testified that he observed no leakage on the day in question; that he has no familiarity with the installation and maintenance of door checks or closers; and that he had never before complained or observed the door malfunctioning; 2. an assistant superintendent (Paul Reese) present on the day of the accident, indicated that he repeatedly used the rear door and never observed any oil or other liquid leaking therefrom; 3. another building assistant superintendent (Michael Murello) reported that during the year prior to the date of the accident, two maintenance workers and two caretakers inspected the rear doors every morning, and he twice per week, to determine if repairs were needed. He never observed the door closing too fast. In addition, he indicated that a work ticket would be generated if any such observation was made by a worker or reported by any tenant; 4. maintenance records for the building reveal that the subject door closer was replaced on December 28, 2000 and its lock twice serviced in 2001. No other incidents of the door closing on or injuring anyone exists; 5. a maintenance worker at the building (Efrain Ortiz) confirmed replacement of the door closer by the work ticket of December 28, 2000, but had no independent recollection thereof or of having received any other tenant complaints with regards [*2]thereto, or of having seen liquid leaking from the subject door check.

In short, NYCHA asserts that it should be granted summary judgment since the plaintiff has failed to establish a prima facie case of negligence; to wit, that it negligently installed, maintained, or had actual or constructive notice of any dangerous condition of a leaking door check or door that was closing too quickly (citing, Piacquadio v. Racine Realty, 84 NY2d 967, 622 NYS2d 493 [1994]; Nedd v. Associated Hosp. Services of New Yrok, Inc., 236 AD2d 455, 654 NYS2d 611 [2d Dept., 1997]; Kraemer v. K-Mart Corp., 226 AD2d 590, 641 NYS2d 130 [2d Dept., 1996]; Rosario v. NYCTA, 215 AD2d 364, 626 NYS2d 242 [2d Dept., 1995]; and, Gordon v. American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 [1986]).

Mr. Young opposes the granting of NYCHA's request for summary judgment on the ground that on the date of the accident "the piece that stops and slows the door down" was broken and the door was leaking fluids as it had been three months earlier when he last visited the subject building. Mr. Young's attorney also notes the following inconsistencies; first, although Mr. Reese testified that a daily maintenance log of the rear door was kept, he clearly stated that inspecting the rear door was not part of his building inspection; second, that Mr. Murello confirmed daily inspections of the doors; however, he did not recall if the housing authority ever instructed the two maintenance workers or the two caretakers what to look for when inspecting the door. In addition, Mr. Ortiz never provided him with information about the work that he did on the rear door on December 28, 2000; third, Mr. Ortiz conceded that during his inspections, he didn't do anything to inspect the amount of liquid in the door check. He also advised that he never did anything to maintain the door closer, and that if a door check does not work properly, it is replaced, although he didn't remember whether he made a repair or replacement on December 28, 2000; fourth, another maintenance worker, Frank Moscioni, testified that "REP" on work tickets stands for either repair or replace; that he never replaced a door check at the subject premises, nor could he say when one had been replaced prior to the date of the accident. Also, he testified that he would not have reported liquid leaking from the door; fifth, NYCHA's superintendent, John Frassetti, who indicated that the only maintenance records in existence or that can be located are front door inspection records for 1999, despite the fact that such records are maintained five years in the transfile office and ten years in storage.

Mr. Young also offered the findings of an expert engineer, Stanley Fein, Ph.D., in additional support of his objection to summary judgment. Dr. Fein, after reviewing deposition transcripts, dated December 19, 2001, July 7, 2003 and April 28, 2006, and based on his July 26, 2001 visual inspection and examination of the door in question, concluded that to a reasonable degree of engineering certainty ". . .the rear door operator revealed that it was not installed properly and not maintained in a safe manner in that (1) it did not control the opening and closing of the dooor; (2) the fluid in the door operator was not properly maintained; and (3) the door was permitted to open and close with great force and with uncontrolled speed."

Finally, Mr. Derek Robinson, who had been with Mr. Young at the time of the accident (listed as April 12, 2001), submitted an affidavit to the effect that he resided at the subject premises for approximately 12 years; that commencing approximately seven months prior to the accident, he had complained to the superintendent, building manager, and the maintenance workers, whenever he saw them, which amounted to an average of two times a week; that ". . .the door would slam shut violently and forcefully with nothing slowing it down;" that the ". . .door had been broken for along time. It would always have a black, dark liquid leaking from the [*3]door closer itself;" and, that he never saw anyone doing any work on the subject door for as far back as one year prior to the accident.

In summary, Mr. Young asserts that the foregoing proofs constitute actual and constructive

notice inasmuch as the defendant's employees were repeatedly told of the condition, and the defect was visible and apparent, and existed for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it (citing, Gordon v. American Museum of Natural History, supra ; Blake v. City of Albany, 48 NY2d 875, 424 NYS2d 358 [1979]; Putnam v, Stout, 38 NY2d 607, 381 NYS2d 848 [1976]; Cantanzaro v. King Kullen, 194 AD2d 548, 599 NYS2d 74 [2d Dept., 1993]).

In Reply, NYCHA argues that contradictions exist between Mr. Robinson's deposition and affidavit, particularly as pertains to the number of times that he supposedly complained of the alleged defect. Also, the affidavit is a feigned attempt to create a false issue of fact in light of the plaintiff's testimony that he knew of no one who had complained to NYCHA as to the alleged defect. So too, the plaintiff's purported expert's conclusions do not jibe with the objective facts, particularly Mr. Young's testimony that the door had closed properly when he last utilized it (approximately three months earlier), and that the date of the accident was the only time that he had seen the door close as quickly as it did (the actual transcript reads that Mr. Young couldn't remember; that it was normal; that he didn't know). In further rebuttal, NYCHA submitted its expert's (Herbert Gallin, professional engineer) assessment that the plaintiff's expert's conclusions several months after the accident are purely speculative, especially as regards whether there was too little oil in the door closer as that finding is not discernable without disassembling the closer, and that the dark marks on the door are more likely the result of water washing dirt off the top of the door, the door cover, or dirt and rust from the screws affixing the check on the door.

"A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). ". . .[T]o establish its prima facie entitlement to judgment as a matter of law. . .[the defendant] needed to submit evidence that [it] neither created the condition which allegedly caused the plaintiff to [close his hand in its rear door], nor had actual or constructive notice of the allegedly dangerous condition" (see Vasta v. Home Depot, 2006 WL 197438 [NYAD2d], 2006 NY Slip Op. 00504; citing Bosman v. Reckson FS Ltd. Partnership, 15 AD3d 517, 790 NYS2d 201; Simmons v. Metropolitan Life Ins. Co., 84 NY2d 972, 622 NYS2d 496; Cody v. DiLorenzo, 304 AD2d 705, 757 NYS2d 789).

Here the defendant has made a prima facie showing of lack of notice on its part so as to preclude recovery by the plaintiff. It has done so on the attestation of the habitual business practices of its several workers that it did not receive actual notice that the door closer was defective or that such defective condition existed for a sufficient period of time for defendant to have acquired constructive notice thereof (See Edwards v. 727 Throggs Neck Expressway, Inc., et al., 2005 WL 3489765 [NYAD1st Dept.], 2005 NY Slip Op. 10040, citing Matcovsky v. Days Hotel, 10 AD3d 557 [2004]).

Once a prima facie showing has been made, the burden shifts to the opposing party to [*4]produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra ).

While the defendant asserts that the plaintiff's friend's affidavit is nothing short of a feigned attempt to create false issues of fact with regards to the matter of notice, and fails to adequately give rise to the existence of any credible material questions of fact sufficient to rebut its prima facie showing (See Stancil v. Supermarkets General, supra , citing Marcelle v. NY City Transit Auth., 289 AD2d 459 [2001]), this court disagrees. To the contrary, the court finds that though there are certainly seeming inconsistencies in the witness' deposition and affidavit, they do not contradict so much as raise issues of credibility. In addition, if the parties' experts can disagree as to observations made of the subject door, certainly it should come as no surprise that the non-experts plaintiff, his friend, the defendants' workers are at odds with their respective observations. Afterall, they are all interested witnesses for the parties for whom they are summoned. Hence, here too, credibility will be the deciding factor.

Accordingly, the defendants' motion, pursuant to CPLR §3212, for an order granting summary judgment on the issue of liability as no triable issues of fact exist herein, and thereby to dismiss the plaintiff's complaint is denied in its entirety. This constitutes the decision and order of this Court.

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