SEPE v. THE STATE OF NEW YORK, #2006-036-518, Claim No. 108668, Motion No.
Defendant’s motion for summary judgment denied . . . issues of fact.
1 1.The court has sua sponte amended the caption to eliminate the
unnecessary and improper references to the State University of New York and
Stony Brook University Hospital.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
sponte amended the caption to eliminate the unnecessary and improper
references to the State University of New York and Stony Brook University
MELVIN L. SCHWEITZER
SCOTT BARON & ASSOCIATES, P.C.By: Theodore H. Rosenblatt, Esq.
SMITH, MAZURE, DIRECTOR, WILKINS, YOUNG & YAGERMAN, P.C.
By: Catherine J. Poissant
May 9, 2006
See also (multicaptioned
This is defendant’s motion for summary judgment dismissing the claim on
the grounds that there are no outstanding issues of fact and that defendant is
entitled to judgment as a matter of law. 
claim accrued on May 20, 2003 when claimant, who had gone to Stony Brook
University Hospital (hereinafter “Stony Brook”) to visit her
daughter who was having surgery, was allegedly struck by an
automatically-opening door, an event she attributes to the negligence of the
defendant. At a conference held on January 19, 2005 before Judge Lack, it was
noted that disclosure was complete except for a non-party deposition scheduled
for January 21, 2005 and a response to a disclosure demand which was to be done
by February 28, 2005. It was further noted that the filing of a note of issue
was waived and that a motion for summary judgment was to be made by April 30,
2005. The motion was made, and was adjourned repeatedly as the parties
discussed possible settlement. In a letter dated January 12, 2006, the court
was advised that a settlement could not be reached and that defendant’s
summary judgment motion should be submitted.
Claimant testified at her deposition that she went to Stony Brook on the date
in question at about 6:30 pm to visit her daughter. She proceeded to a waiting
room adjacent to the recovery room, with her husband and three grandchildren,
and stayed there for about 45 to 50 minutes. She then got up and walked to a
set of double doors separating the waiting room from the recovery room.
Claimant testified: “I wanted to see if I could go in and see my daughter.
I was waiting to see a nurse come out, you know, so nobody came, and I just
looked through the window, I figured I might as well go back. By the time I
finished saying that to myself, the doors flew open” (Defendant’s
Exhibit “H,” p 33). She described the doors as two large automatic
swinging doors and stated that, although the doors had signs at the top, she did
not know that they were automatic swinging doors until after her accident.
Claimant’s testimony first was unclear as to what she observed prior to
the accident and what she was told after the accident but she later testified
she did not notice any signs before the accident (id., p 38-41).
She stated she walked to the doors and was going to look through the glass, when
“all of a sudden these doors flew open” (id., p 42) and she
was struck by the door on the left, knocking her to the floor.
David Wright, who is married to claimant’s granddaughter, was present in
the waiting room when claimant arrived, according to his testimony, “a few
minutes prior to the accident” (Defendant’s Exhibit “J,”
pp 7-8). He had first arrived at the hospital in the early afternoon and was in
and out all day. Prior to the subject incident, he had not seen anyone go
through the doors in question. At one point, he went to the doors and looked
through the glass windows to see if he could see his wife and mother-in-law. He
stated there was a device next to the door on the right that one could push to
open the door. He never used that device nor did he see anyone else use it.
Asked if there were any signs on the doors, he responded that he recalled a
round red sign that he thought said “do not enter” and might have
said “caution” but he conceded that he was “not clear on what
it said” (id., p 15).
Mr. Wright advised that claimant arrived in the waiting area and proceeded to
the doors to look through the windows when both doors opened (the left side door
opening towards the waiting room and the right side door opening away from the
waiting room) and the left side door struck claimant and knocked her to the
According to Mr. Wright, there were “notes” written on top of the
door in “electrician’s type of handwriting” that were
“written onto the door, on top of the door. It was like etched in
* * * [i]t was talking about volts and such” (id., pp 31-32).
There was nothing that said that the doors were out of order or warning not to
use the doors. Mr. Wright stated that a door repairman arrived shortly after
the incident and said he was going to fix the door. Specifically, he testified
that Nick Sepe, claimant’s husband, pointed out the notes on the door and
the repairman said “yes, those are notes to fix the door, somebody’s
got to get here and fix the door” (id., p 43).
Freddie Eddins, a carpenter at Stony Brook, also was deposed in this action.
He indicated that a company known as Door Automation Corporation was responsible
for repair of the automatic doors at the hospital in May, 2003, pursuant to a
contract with Stony Brook. He testified that the doors operated by motion
sensor on the side coming from the surgical area (which he described as the
emergency room area), and by a push switch on the side coming from the waiting
The day after claimant’s accident, Mr. Eddins was advised of the accident
by his supervisor and told to “go and check the door out to see if
anything other than the ordinary had happened since the day before, see if it
was operating, malfunctioning” (Defendant’s Exhibit “I,”
p 18). He stated he checked the doors twice and found that they were operating
properly. He described the procedure as a “[t]hree to five minute
procedure where you would go and check the push button to make sure the doors do
operate and as the door’s closing you would step in, make sure the sensor
picks you up and it does open again on the other side where the push bar is.
Now, on the other side of the door you would have to walk up and make sure that
the sensor is picking you up, whether in which case is it’s usually a busy
area, there’s always something coming, you can wait and see if the door is
working properly” (id.
, pp 18-19). Asked to clarify whether the
sensors were supposed to stop the door if someone is coming in the wrong side,
Eddins responded “Yes. It re-opens. There’s a sensor located on
both sides of the door” (id.
). He was referring to a black
rectangular box that is above the door and is visible on a photograph that was
marked as Exhibit “1" at Mr. Eddins’s
Mr. Eddins testified that when he
inspected the doors the morning after claimant’s accident, they were
operating properly, and that the doors were routinely inspected every
The law applicable to motions for summary judgment is clear:
“Summary judgment is a drastic remedy that deprives a litigant of his or
her day in court, and it ‘should only be employed when there is no doubt
as to the absence of triable issues’ (Andre v Pomeroy, 35 NY2d 361,
364 ). The function of the court on a motion for summary judgment is not
to resolve issues of fact or determine matters of credibility, but merely to
determine whether such issues exist (see Scott v Long Is. Power Auth.,
294 AD2d 348 ; Anyanwu v Johnson, 276 AD2d 572 ; Omrami v
Socrates, 227 AD2d 459 ; Rebecchi v Whitmore, 172 AD2d 600
(Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]).
Here, claimant raises a number of points in opposing defendant’s motion.
Claimant’s first argument – that disclosure is not yet complete and
it would be improper to grant summary judgment for that reason – has no
support in the record and is rejected. Nevertheless, the motion must be denied
because defendant has not met its burden to establish that there are no relevant
issues of fact and that it is entitled to judgment as a matter of law.
Responding to claimant’s contention that Mr. Eddins’s testimony
indicated that the automatic doors were supposed to stop opening if a sensor
indicated that someone was standing in the door’s path, defense counsel
contends that “[a] careful reading of claimant’s interpretation of
this one individual question (without follow up questions to clarify the answer)
shows that it does not make any sense” (Reply Affirmation, § 11).
Counsel further argues that what Mr. Eddins likely meant was that the
sensor was intended to insure the door stayed open for a sufficient time to
allow a person, or a stretcher, to pass through, without prematurely closing.
The court concurs with counsel’s interpretation of this testimony, and
indeed it is supported by the testimony of Josh Gatoff, President of Door
Automation Corp., taken in a Supreme Court action brought by claimant against
that company (Claimant’s Exhibit “A”). Although defendant
concludes from this that there is no indication the doors were not operating
properly, this conclusion ignores Mr. Wright’s testimony that when
claimant fell, there was nobody on the other side of the doors
(Defendant’s Exhibit “J,” p 48).
Leaving aside the question of whether the doors were operating properly, a
basic issue herein is whether defendant fulfilled its duty of reasonable care
with respect to the waiting area and the doors in question, and specifically
whether it gave adequate warning of the inherent danger posed by these automatic
doors (Basso v Miller
, 40 NY2d 233, Preston v State of New York,
Defendant submitted five photographs in support of its motion. Exhibit
“K” consisted of two photographs each that showed two open doors,
with yellow circles painted on the floor in front of each door with the words
“No Standing” written in black within the yellow circles. There is
no reference to these warning signs in any of the testimony and the court doubts
whether these painted signs were present on the date of claimant’s
accident. Exhibit “L” consists of three photographs. The first
photograph shows two doors, each with a narrow vertical window, and a small
yellow sign with the words “Caution Automatic Door.” The second
photograph shows what are presumably the same doors, with two additional signs,
one red sign stating “No Exit to Parking Lot” and one green sign
stating “Emergency Department Personnel No Through Traffic.” The
third photograph shows what is presumably the push button referred to in the
testimony, with a green sign above it stating “No Smoking No Cellular
Phones” (only a portion of the sign is visible) and a white sign next to
the button stating “Emergency Department Staff and Patients Only All
Hospital Visitors and Hospital Staff Use Alternate Hallway.” It is
unclear when any of these photographs were taken. The only thing that is clear
to the court is that the small, round yellow sign stating “Caution
Automatic Door” was present on the date of claimant’s
Defense counsel argues: “The warning sign instructed individuals to use
Caution because the door would open into the area where claimant chose to
stand” (Affirmation in Support, ¶ 44); and “[l]iability should
not be placed on the defendants for a door which functioned properly and had a
large, bright yellow Caution sign placed directly on the door”
(Affirmation in Support, ¶ 45). These statements by defense counsel beg
the question. Claimant’s counsel argues: “[a] sign that says
‘caution’ and is also accompanied by words ‘automatic
door’ does not warn that the door on which it is affixed may come flying
at you and knock you down. Particularly, when there is an inviting window to
look into the area from which it opens” (Affirmation in Opposition, ¶
23). Whether defendant fulfilled its duty of reasonable care, and specifically
whether the warning of the possibility of being struck by the door was adequate,
is a significant factual issue that may well determine the outcome of this
At this point in the litigation, the court cannot say which conclusion is
correct. As noted, the role of the court is to determine whether issues of fact
exist, not to resolve them based on affidavits and photographs and thus deprive
claimant of the opportunity to prove her contention at a trial where all of the
relevant evidence, including expert testimony on applicable industry standards
for automatic doors in hospitals, may be evaluated (see Vanderwater v
Sears, 277 AD2d 1056 [4th Dept 2000]; Freese v Schwartz, 203
AD2d 513 [2d Dept 1994]).
For the foregoing reasons, the motion is denied.
May 9, 2006
New York, New
HON. MELVIN L. SCHWEITZER
Judge of the Court of Claims
.The considered the Notice of Motion,
Supporting Affirmation with Exhibits, Affirmation in Opposition with Exhibits
and Reply Affirmation with Exhibits.
.The photograph referred to by Mr. Eddins may
or may not be one of the photographs attached to defendant’s motion papers
as Exhibits “K” and “L.” It is unclear when these
photographs were taken.