The infant plaintiff was injured when he tripped at the top of an escalator in a Macy's store and his arm got caught between the handrail and the handrail return guard. The Mainco defendants established prima facie that, even assuming a missing or defective handrail return guard, they were not negligent, because they did not create the condition, they had received no previous complaints about such a condition, and the records of the regular monthly preventive maintenance they performed three weeks before the accident indicated no problems ( see Parris v Port of N.Y. Auth., 47 AD3d 460). The affidavits submitted by plaintiffs and Macy's in opposition, in which elevator experts stated that the handrail return guard was either missing or defective and opined that Mainco had been negligent in failing to observe that it was missing or in failing to correct the defect, were insufficient to raise an issue of fact because the experts' opinions were unsupported by any evidentiary foundation ( see Gjonaj v Otis El. Co., 38 AD3d 384).
Since there has been no finding that negligence on Macy's part was a cause of the infant plaintiff's injuries, the Mainco defendants are not entitled to indemnification for costs and attorney's fees by Macy's under either the common law ( see e.g. Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364, 366, lv dismissed 7 NY3d 864) or the indemnification provision of their contract.
[Prior Case History: 2009 NY Slip Op 32252(U).]