Cilinger v. Arditi Realty Corp.
| Decision Date | 26 October 2010 |
| Citation | 911 N.Y.S.2d 75,77 A.D.3d 880 |
| Parties | Stephen CILINGER, etc., et al., appellants, v. ARDITI REALTY CORP., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Timothy G. Griffin, Bronxville, N.Y., for appellants.
Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for respondents Arditi Realty Corp. and Mayerhauser Realty, Inc.
Goldberg Segalla LLP, White Plains, N.Y. (William T. O'Connell of counsel), for respondent D & D Elevator Maintenance & Repair, Inc.
JOSEPH COVELLO, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered June 29, 2009, as granted that branch of the motion of the defendant D & D Elevator Maintenance & Repair, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and granted that branch of the cross motion of the defendants Arditi Realty Corp. and Mayerhauser Realty, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs.
The defendants Arditi Realty Corp. (hereinafter Arditi) and Mayerhauser Realty, Inc. (hereinafter Mayerhauser), own and manage a building located on Glover Avenue in Yonkers. The building's elevator was maintained by the defendant D & D Elevator Maintenance & Repair, Inc. (hereinafter D & D), pursuant to a contract with Arditi and Mayerhauser. The plaintiffs Stephen Cilinger and Nazlihan Cilinger, and their 2 1/2-year-old son, Dogukan Cilinger (hereinafter Dogukan), lived in the building. On March 8, 2000, at about 8:30 P.M., the family entered the building's elevator in order to get to its apartment. Dogukan's foot became wedged between the floor of the elevator cab and the exterior wall. The elevator doors closed, and the elevator began moving. Ultimately, the Yonkers Fire Department freed Dogukan's foot. City of Yonkers senior elevator inspector Louis Giovannetti inspected the elevator that night and the next day, and found it to be functioning properly. He concluded that the child's foot was so small that the interior elevator door was able to close enough so as to allow contact between the door and the gate switch at the top of the door, which caused the elevator to begin moving.
The plaintiffs commenced this action against Arditi, Mayerhauser,and D & D in May 2000, alleging that the elevator had been negligently maintained. D & Dmoved, and Arditi and Mayerhauser cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. In opposition, the plaintiffs submitted the affidavit of C. Stephen Carr, a practicing engineer with 40 years of experience in the elevator industry, who stated that the accident occurred because the gap between the elevator cab and the floor was excessive, and because the gate switch needed to be adjusted. Carr did not inspect the elevator itself, and based his conclusions on violations found with respect to the elevator almost 1 1/2 years after the accident.
The Supreme Court awarded summary judgment to the defendants. The plaintiffs appeal.
To establish that a building owner is liable for an elevator-related injury, a plaintiff must establish that there was a defect in the elevator, and that the building owner had actual or constructive notice of the defect ( see Lee v. City of New York, 40 A.D.3d 1048, 1049, 836 N.Y.S.2d 688). If the owners hire an elevator maintenance company to maintain the elevator, liability can be found against the owners if they received notice of a defect and failed to notify the elevator company about it ( see Oxenfeldt v. 22 N. Forest Ave. Corp., 30 A.D.3d 391, 391-392, 816 N.Y.S.2d 563).
...
To continue reading
Request your trial
-
Yiu v. George J. Crevatas As Tr. of The Crevatas Family Trust
... ... D & W Shin Realty Corp., 47 A.D.3d 616, 618, 852 N.Y.S.2d 138 [2008]; Copertino v. Ward, 100 ... ...
-
Forde v. Trust
...559, 347 N.Y.S.2d 22, 300 N.E.2d 403; Stewart v. World El. Co., Inc., 84 A.D.3d 491, 495, 922 N.Y.S.2d 375; Cilinger v. Arditi Realty Corp., 77 A.D.3d 880, 882–883, 911 N.Y.S.2d 75; Levine v. City of New York, 67 A.D.3d 510, 888 N.Y.S.2d 55; Talapin v. One Madison Ave. Condominium, 63 A.D.3......
-
Roldan v. N.Y. Univ.
...( see Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226-227, 501 N.Y.S.2d 784, 492 N.E.2d 1200; Cilinger v. Arditi Realty Corp., 77 A.D.3d 880, 911 N.Y.S.2d 75; Cortes v. Central El. Inc., 45 A.D.3d 323, 324, 845 N.Y.S.2d 259; Hardy v. Lojan Realty Corp., 303 A.D.2d 457, 755 N.Y.S......
-
Kostulias v. City of New York
... ... ACRON MAINTENANCE, INC., EXCEL ELEVATOR & ESCALATOR CORP. Defendant. Index Nos. 154897/2015, 595465/2016 Supreme Court, New York ... conduct (see Ortega v Everest Realty LLC, 84 A.D.3d ... 542, 544 [1st Dept 2011]), and ... that ... Assocs., 32 N.Y.2d 553, 559 (1973); see also ... Cilinger v Arditi Realty Corp, 77 A.D.3d 880, 882-83 ... [2010]) ... ...