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Miller v. Creekside of Western New York Construction, Inc.

309 A.D.2d 1279 Court N.Y. App. Div. Decision date 2003-10-02 English

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p. 1279
Susan R. Miller, Appellant, v Creekside of Western New York Construction, Inc., Respondent.
[765 NYS2d 558]

Appeal from an order of Supreme Court, Erie County (Mintz, J.), entered April 29, 2002, which granted defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for personal injuries she sustained while working as a waitress at a restaurant that had been previously remodeled by defendant, asserting causes of action for negligence, breach of contract, and strict products liability. Plaintiff was injured when she attempted to walk through a swinging door into the restaurant kitchen at the same time that a coworker attempted to walk in the opposite direction through the same swinging door. Supreme Court properly granted defendant’s motion for

p. 1280
summary judgment dismissing the complaint. Contrary to the contention of plaintiff, defendant did not owe a duty to her with respect to work it contracted to perform for her employer (see Jackson v Lehigh Constr. Group, 299 AD2d 836 [2002], lv denied 99 NY2d 511 [2003]). Moreover, defendant met its initial burden of establishing that it did not “negligently create [] or exacerbate! ] a dangerous condition” (Espinal v Melville Snow Contrs., 98 NY2d 136 , 142 [2002]; see Church v Callanan Indus., 99 NY2d 104 , 111 [2002]), and plaintiff failed to raise a triable issue of fact. In remodeling the restaurant owned by plaintiff’s employer, defendant used the same swinging door to access the kitchen as was there before the remodeling. Present — Green, J.P., Pine, Wisner and Hayes, JJ.

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