Gernat v. State

Appeal from a judgment of the Court of Claims (Renee Forgensi Minarik, J.), entered June 15, 2004 in a personal injury-action. The judgment, after a nonjury trial, dismissed the claim. It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed without costs. Memorandum: Claimant, a member of the varsity ice hockey team at Buffalo State College, commenced this action to recover damages for injuries that he allegedly sustained when he was propelled into a door that was part of the hockey rink, and the door sprung open. The Court of Claims dismissed the claim following a trial, and we affirm. We reject the contention of claimant that the court abused its discretion in striking the testimony of his expert. Claimant failed to present sufficient evidence that his expert had the requisite expertise on the issue of the design of hockey rink doors (see generally Werner v Sun Oil Co., 65 NY2d 839, 840 [1985]; Matott v Ward, 48 NY2d 455, 459 [1979]), and his expert’s testimony “was unsupported by foundational facts such as deviation from industry standards or statistics showing the frequency of injuries caused by such a design” (Cervone v Tuzzolo, 291 AD2d 426, 427 [2002]). Also contrary to claimant’s contention, the verdict is not against the weight of the evidence. According to claimant, defendant was negligent under a theory of premises liability. Thus, claimant had to establish that “ ‘a defective condition existed [1016] and that the [property owner] affirmatively created the condition or had actual or constructive notice of its existence’ ” (Hanley v Affronti, 278 AD2d 868, 869 [2000]). Here, claimant presented no admissible evidence that the latch on the door was defective, nor did he present any evidence that defendant affirmatively created the condition. With respect to actual notice, claimant presented no evidence establishing that the door at issue previously had sprung open, nor did he present any evidence of prior complaints or difficulties with that door. To establish that defendant had constructive notice of the allegedly defective condition, claimant had to establish that the alleged 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” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; cf. Gallagher v TDS Telecom, 294 AD2d 860 [2002]), and claimant failed to meet that burden. We also reject the contention of claimant that he was entitled to judgment under the doctrine of res ipsa loquitur. In order to establish entitlement to the application of that doctrine, claimant had to establish, inter alia, that his injury resulted from an event of a kind that ordinarily does not occur in the absence of someone’s negligence and that the event was caused by an agency or instrumentality within the exclusive control of defendant (see Ebanks v New York City Tr. Auth., 70 NY2d 621, 623 [1987]; Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]). Here, claimant failed to establish either of those elements. We have considered claimant’s remaining contentions and conclude that they are without merit. All concur except Gorski, J., who dissents and votes to reverse in accordance with the following memorandum.