Fiermonti v. Otis Elevator Co.

PETER B. SKELOS

Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for appellant. Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III], of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated March 24, 2011, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff allegedly sustained personal injuries when the freight elevator he was riding suddenly dropped 8 to 12 inches as he was attempting to step out of the elevator car while pushing a dolly. The plaintiff and his wife, suing derivatively, commenced this action against the defendant, Otis Elevator Company (hereinafter Otis), the company retained to service and maintain the elevator, claiming that the sudden misleveling of the elevator car was caused by Otis's negligent failure to maintain the elevator in a safe condition. The Supreme Court denied Otis's motion for summary judgment dismissing the complaint.

“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” ( Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403; see Devito v. Centennial El. Indus., Inc., 90 A.D.3d 595, 933 N.Y.S.2d 871; Cilinger v. Arditi Realty Corp., 77 A.D.3d 880, 882–883, 911 N.Y.S.2d 75). Although Otis established, prima facie, that it did not have actual or constructive notice of the alleged defective condition of the elevator that would cause it to abruptly mislevel ( see Carrasco v. Millar El. Indus., 305 A.D.2d 353, 354, 758 N.Y.S.2d 679; Gaspard v. Barkly Coverage Corp., 65 A.D.3d 1188, 1189, 885 N.Y.S.2d 542; Narvaez v. New York City Hous. Auth., 62 A.D.3d 419, 878 N.Y.S.2d 724), the Supreme Court properly determined that the plaintiffs, in opposition, raised a triable issue of fact regarding notice of such defective condition ( see Miguel v. 41–42 Owners Corp., 57 A.D.3d 488, 869 N.Y.S.2d 166; Hall v. Barist El. Co., 25 A.D.3d 584, 807 N.Y.S.2d 639; Gurevich v. Queens Park Realty Corp., 12 A.D.3d 566, 784 N.Y.S.2d 397).

Similarly, the Supreme Court correctly determined that the plaintiffs raised a triable issue of fact as to whether or not Otis was liable under the doctrine of res ispa loquitur. Proof that the sudden misleveling of the elevator was an occurrence that would not ordinarily occur in the absence of negligence, that the maintenance and service of the elevator was within the exclusive control of Otis, and that no act or negligence on the injured plaintiff's part contributed to the happening of the accident, is a basis for liability under the doctrine of res ipsa loquitur ( see Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 211–212, 818 N.Y.S.2d 792, 851 N.E.2d 1143; Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494–495, 655 N.Y.S.2d 844, 678 N.E.2d 456; Devito v. Centennial El. Indus., Inc., 90 A.D.3d at 595–596, 933 N.Y.S.2d 871; Fyall v. Centennial El. Indus., Inc., 43 A.D.3d 1103, 1104, 843 N.Y.S.2d 137; Gurevich v. Queens Park Realty Corp., 12 A.D.3d at 567, 784 N.Y.S.2d 397; Ardolaj v. Two Broadway Land Co., 276 A.D.2d 264, 714 N.Y.S.2d 12; Garrido v. International Bus. Mach. Corp. [IBM], 38 A.D.3d 594, 832 N.Y.S.2d 71; Bigio v. Otis El. Co., 175 A.D.2d 823, 824, 573 N.Y.S.2d 196).

Accordingly, the Supreme Court properly denied Otis's motion for summary judgment dismissing the complaint.