Daconta v. Otis Elevator Co., 2016–02292

• Citation: 165 A.D.3d 753,85 N.Y.S.3d 528
• Decision Date: 10 October 2018
• Docket Number: 2016–02292,Index No. 41183/10
• Parties: Theresa DACONTA, et al., Appellants, v. OTIS ELEVATOR COMPANY, Respondent.
• Court: New York Supreme Court Appellate Division

165 A.D.3d 753

85 N.Y.S.3d 528

Theresa DACONTA, et al., Appellants,

v.OTIS ELEVATOR COMPANY, Respondent.

2016–02292

Index No. 41183/10

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

Submitted—April 20, 2016

October 10, 2018

Nichols & Cane, LLP, Syosset, N.Y. (Regina C. Nichols and Jamie Persky Mitchnick of counsel), for appellants.

Geringer, McNamara & Horowitz LLP, New York, N.Y. (David Paul Horowitz of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Joseph Pastoressa, J.), dated December 1, 2015. The order, insofar as appealed from, granted the defendant's motion for summary judgment dismissing the complaint and denied that branch of the plaintiffs' cross motion which was pursuant to CPLR 3126 to impose sanctions on the defendant for spoliation of evidence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The injured plaintiff allegedly tripped while entering an elevator at her workplace. The injured plaintiff alleges that the floor of the elevator was misaligned with the hallway landing, which caused her to stumble as she stepped into the elevator. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendant, the company retained to maintain and service the elevator, to recover damages for personal injuries allegedly sustained in the accident. The Supreme Court, inter alia, granted the defendant's motion for summary judgment dismissing the complaint and denied that branch of the plaintiffs' cross motion which was pursuant to CPLR 3126 to impose sanctions on the defendant for spoliation of evidence. The plaintiffs appeal.

"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 Little v. Kone, Inc., 139 A.D.3d 678, 679, 31 N.Y.S.3d 147 ). Here, the defendant submitted sufficient evidence to establish, prima facie, that it did not have actual or constructive notice of a misleveling condition, and that it did not fail to use reasonable care to correct a condition about which it should have been aware (see Little v. Kone, Inc., 139 A.D.3d at 679, 31 N.Y.S.3d 147 ; Reed v. Nouveau El. Indus., Inc., 123 A.D.3d 1102, 1103, 999 N.Y.S.2d 182 ; Tucci v. Starrett City, Inc., 97 A.D.3d 811, 812, 949 N.Y.S.2d 419 ; Johnson v. Nouveau El. Indus., Inc., 38 A.D.3d 611, 612, 831 N.Y.S.2d 527 ).

In opposition, the plaintiffs failed to raise a triable issue of fact. The affidavit of the plaintiffs' expert, which was speculative, lacking in foundation, and conclusory, was insufficient to raise a triable issue of fact (see Little v. Kone, Inc., 139 A.D.3d at 679, 31 N.Y.S.3d 147 ; Reed v. Nouveau El. Indus., Inc., 123 A.D.3d at 1103, 999 N.Y.S.2d 182 ; Tucci v. Starrett City, Inc., 97 A.D.3d at 812–813, 949 N.Y.S.2d 419 ; Forde v. Vornado Realty Trust, 89 A.D.3d 678, 679, 931 N.Y.S.2d 687 ).

The doctrine of res ipsa loquitur was not applicable as the plaintiffs failed to demonstrate that the accident "was one that would not ordinarily occur in the absence of someone's negligence" ( Tucci v. Starrett City, Inc., 97 A.D.3d at 813, 949 N.Y.S.2d 419 ; see Little v. Kone,...