Bigio v. Otis Elevator Co.

• Citation: 175 A.D.2d 823,573 N.Y.S.2d 196
• Parties: Olga BIGIO, Respondent, v. OTIS ELEVATOR COMPANY, Appellant.
• Decision Date: 12 August 1991
• Court: New York Supreme Court — Appellate Division

Page 196

573 N.Y.S.2d 196

175 A.D.2d 823

Olga BIGIO, Respondent, v. OTIS ELEVATOR COMPANY, Appellant.

Supreme Court, Appellate Division,

Second Department.

Aug. 12, 1991.

Quirk & Bakalor, P.C., New York City (H. Nicholas Goodman and Bruce W. Minsky, of counsel), for appellant.

Michelle S. Mirman, Brooklyn (Jeffrey Schwartz, of counsel), for respondent.

Before BRACKEN, J.P., and KOOPER, MILLER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Cohen-Aronin, J.), entered November 27, 1989, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $71,245.02.

ORDERED that the judgment is affirmed, with costs.

Contrary to the defendant's contentions, it was not error for the trial court to charge the jury on the doctrine of res ipsa loquitur. The evidence adduced at the trial established that the plaintiff fell while alighting from an elevator maintained by the defendant and that this elevator had stopped approximately two inches below the level of the landing. There was also evidence that the elevator in question had misleveled in the past and there was expert testimony that such misleveling would not occur except as a result of a mechanical failure which was the result of a failure to properly maintain the electrical systems of the elevator. While the defense proffered evidence to the contrary on these points, the record is nevertheless sufficient for the court to have permitted the jury to consider the doctrine of res ipsa loquitur, as it was reasonable for the jury to conclude that the misleveling of the elevator was not the kind of event to occur in the absence of negligence (see, Kelly v. Watson Elevator Co., 309 N.Y. 49, 127 N.E.2d 802), that the elevator was in the defendant's exclusive control as a result of a service contract with the building owner, and that the plaintiff did not contribute to the misleveling (see, Burgess v. Otis Elevator Co., 114 A.D.2d 784, 495 N.Y.S.2d 376, affd 69 N.Y.2d 623, 511 N.Y.S.2d 227, 503 N.E.2d 692; see also, Liebman v. Otis Elevator Co., 127 A.D.2d 745, 512 N.Y.S.2d 136; Peters v. Troy Housing Auth., 108 A.D.2d 999, 485 N.Y.S.2d 149; Smith v. Jay Apts., 33 A.D.2d 624, 304 N.Y.S.2d 737).

We have reviewed the defendant's remaining contentions and find them to be without merit.