Casey v. N.Y. Elevator & Elec. Corp..

• Decision Date: 29 March 2011
• Citation: 82 A.D.3d 639,2011 N.Y. Slip Op. 02451,920 N.Y.S.2d 308
• Parties: Barbara CASEY, etc., Plaintiff–Respondent,v.NEW YORK ELEVATOR & ELECTRICAL CORPORATION, Defendant–Appellant,Winoker Realty Co., Inc., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 639

920 N.Y.S.2d 308

2011 N.Y. Slip Op. 02451

Barbara CASEY, etc., Plaintiff–Respondent,

v.NEW YORK ELEVATOR & ELECTRICAL CORPORATION, Defendant–Appellant,Winoker Realty Co., Inc., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

March 29, 2011.

Babchik & Young, LLP, White Plains (Bruce Young of counsel), for appellant.Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York (Richard M. Steigman of counsel), for Barbara Casey, respondent.Patrick J. Crowe, Melville, for Winoker Realty Co., Inc., respondent.MAZZARELLI, J.P., SAXE, RENWICK, DeGRASSE, RICHTER, JJ.

[920 N.Y.S.2d 309 , 82 A.D.3d 640]

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 12, 2010, which denied New York Elevator's motion for dismissal pursuant to CPLR 3211(a)(1) and (7) and/or CPLR 3211(c), unanimously affirmed, without costs.

On September 12, 2008, plaintiff's decedent Kieran Casey fell to his death in an elevator shaft at a building managed by defendant Winoker and for which defendant New York Elevator allegedly maintained the elevator.

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 [1973]; Burgess v. Otis El. Co., 114 A.D.2d 784, 785, 495 N.Y.S.2d 376 [1985], affd. 69 N.Y.2d 623, 511 N.Y.S.2d 227, 503 N.E.2d 692 [1986] ). That duty, is limited, however, to cases where, pursuant to contract, the elevator company has assumed “exclusive control” of the elevator at the time of the accident and no duty can be imparted by a “piecemeal oral contract” ( see Verdi v. Top Lift & Truck Inc., 50 A.D.3d 574, 856 N.Y.S.2d 605 [2008]; Karian v. G & L Realty, LLC, 32 A.D.3d 261, 263–264, 820 N.Y.S.2d 231 [2006] ). There is no evidence in this record that New York Elevator was under contract such to impart a duty upon it to third persons ( see Rogers, 32 N.Y.2d at 559, 347 N.Y.S.2d 22, 300 N.E.2d 403).

However, even in the absence of a contract, an elevator company can be liable in tort, where it negligently services and/or inspects an elevator ( see Alejandro v. Marks Woodworking Mach. Co., 40 A.D.2d 770, 337 N.Y.S.2d 293 [1972]; affd. 33 N.Y.2d 856, 352 N.Y.S.2d 198, 307 N.E.2d 256 [1973]; Alsaydi v. GSL Enters., 238 A.D.2d 533, 656 N.Y.S.2d 691 [1997] ). The documentary evidence proffered by New York Elevator, at this stage, does not, as a matter of law, prove that it did not negligently inspect, service or maintain the freight elevator prior to the accident ( Bartee v. D & S Fire Protection Corp., 79 A.D.3d 508, 913 N.Y.S.2d 73 [2010] ).

Questions of fact also exist as to whether New York Elevator was negligent when it performed prior Department of Buildings inspections ( see Sanzone v. National El. Inspection Serv., 273 A.D.2d 94, 709 N.Y.S.2d 79 [2000]; Alsaydi, 238 A.D.2d at 534, 656 N.Y.S.2d 691). The affidavit submitted by New York Elevator's field supervisor was not based on personal knowledge, was otherwise conclusory, and therefore was insufficient to...