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LEATRICE MASSATO, appellant, v. SEARS ROEBUCK COMPANY, defendant, OTIS ELEVATOR CO., respondent.

DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant Otis Elevator Co.

The defendant Sears Roebuck Company (hereinafter Sears) contracted with the defendant Otis Elevator Co. (hereinafter Otis) to maintain its escalator in safe operating condition and to examine its safety devices periodically. Otis maintained a storage room at the Sears store, performed preventive maintenance regularly, and conducted inspections annually. Otis was the only company called by Sears for escalator repair work, and it ensured that the escalator was in compliance with all local laws and regulations. Therefore, contrary to the court's determination, Otis assumed full responsibility to maintain, repair, and inspect the escalator at Sears (see, Rogers v. Dorchester Assocs., 32 N.Y.2d 553; Birdsall v. Montgomery Ward Co., 109 A.D.2d 969, affd 65 N.Y.2d 913; cf., McMurray v. P.S. El., Inc., 224 A.D.2d 668). In addition, issues of fact remain as to whether Otis was negligent for its alleged failure to install an alarmed, transparent cover over the escalator stop button, which might have prevented the accident at issue (see, Alsaydi v. GSL Enters., Inc., 238 A.D.2d 533).

SANTUCCI, J.P., JOY, SULLIVAN and ALTMAN, JJ., concur.

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MASSATO v. SEARS ROEBUCK COMPANY
(May 15, 2000)