Defective Gate Claim Against City Dismissed

           In Silvia Durri v. City of New York, et al. (2nd Dept 2012, Index No. 25767/08), the facts are as follows: as the plaintiff was attempting to open a metal gate at the defendants’ parking lot, the hinges of the gate came apart; although the plaintiff tried to hold up the gate with her hands, she was unable to do so, and the gate ultimately fell on top of her, causing her to fall and allegedly sustain injuries.  Thereafter the plaintiff sued the City of New York and other parties alleged to have been responsible for the defective gate.  After discovery was completed, the defendants made a motion for summary judgment, which was granted by the trial court and affirmed by the Appellate Division, Second Department.

The Appellate Division held the following: “[the defendants established] that they did not create or have actual or constructive notice of any hazardous condition...the defendants’ custodian testified at a deposition that he inspected the gate twice a week, never observed any defects in the gate, and never received any complaints about the gate prior to the accident.  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the alleged hazardous condition.  [Additionally,] contrary to the plaintiff’s contention, the doctrine of res ipsa loquitur is not applicable here.  The evidence did not show that the defendants were in exclusive control of the gate.”

Salvatore R. Marino, Esq.