Camaj v. East 52nd Partners
| Decision Date | 04 May 1995 |
| Citation | 626 N.Y.S.2d 110,215 A.D.2d 150 |
| Parties | Rozeta CAMAJ, et al., Plaintiffs-Respondents-Appellants, v. EAST 52ND PARTNERS, etc., et al., Defendants-Respondents, and Schindler Elevator Corporation, Defendant-Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
S.C. Falkoff, for plaintiffs-respondents-appellants.
M.J. France, for defendants-respondents.
J.M. Furey, for defendant-appellant-respondent.
Before RUBIN, J.P., and ROSS, NARDELLI, WILLIAMS and TOM, JJ.
Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered April 15, 1994, which granted defendants East 52nd Partners' and Jones Lang Wooton, USA's motion for summary judgment and plaintiff's cross motion to compel production of a witness for a deposition, and judgment, same court and Justice, entered July 28, 1994, which dismissed plaintiffs' complaint and defendant Schindler Elevator Corp.'s cross claims against East 52nd Partners and Jones Lang Wooton, unanimously modified, on the law, to the extent of denying East 52nd Partners' motion for summary judgment dismissing the complaint as against it, reinstating the complaint as against East 52nd Partners, and granting East 52nd Partners' motion for summary judgment on its cross claim for indemnification against Schindler Elevator Corp., and otherwise affirmed, without costs. Appeal by Schindler Elevator Corp. from the decision of the same court and Justice, entered February 28, 1994, unanimously dismissed as taken from a nonappealable paper, without costs.
The relevant undisputed evidence before the IAS court established that just prior to the accident, the owner, East 52nd Partners, through its building manager, Jones Lang Wooton, USA, became aware that the elevator in which plaintiff was later injured had ceased functioning and required service. A service call was made to Schindler Elevator Corp., who had a contract with East 52nd to maintain and repair all elevators in the building. The contract provided for 42 hours per-month minimum preventive maintenance, 24 hours per-day emergency minor adjustment service and periodic safety testing and performance evaluations, and for all repair and maintenance to be exclusively performed by Schindler. In addition, the building personnel were instructed to notify Schindler whenever a problem arose and to do no repair work themselves. The car was promptly serviced by a Schindler mechanic and immediately restored to full operation,...
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...in control of the instrumentality causing the accident, and res ipsa loquitur does not apply to the owner (Camaj v. East 52nd Partners, 215 A.D.2d 150, 626 N.Y.S.2d 110 [1st Dept.1995] ).Accordingly, the order of the Supreme Court, New York County (Jeffrey K. Oing, J.), entered February 24,......
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