Eliasberg v. Mem'l Sloan-Kettering Cancer Ctr.

CourtNew York Supreme Court — Appellate Division
Writing for the CourtGONZALEZ
Citation915 N.Y.S.2d 43,79 A.D.3d 628
PartiesRenee ELIASBERG, Plaintiff-Respondent, v. MEMORIAL SLOAN-KETTERING CANCER CENTER, et al., Defendants, MacKenzie Group, Inc., Defendant-Appellant.
Decision Date28 December 2010
915 N.Y.S.2d 43
79 A.D.3d 628


Renee ELIASBERG, Plaintiff-Respondent,
v.
MEMORIAL SLOAN-KETTERING CANCER CENTER, et al., Defendants,
MacKenzie Group, Inc., Defendant-Appellant.


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

Dec. 28, 2010.

915 N.Y.S.2d 43

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola (Elizabeth Gelfand Kastner of counsel), for appellant.

Hach & Rose LLP, New York (Philip S. Abate of counsel), for respondent.

GONZALEZ, P.J., MAZZARELLI, SWEENY, RICHTER, MANZANET-DANIELS, JJ.

915 N.Y.S.2d 44, 79 A.D.3d 628

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered April 23, 2010, which, to the extent appealed from, denied defendant MacKenzie Group, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against defendant MacKenzie Group, Inc.

Defendant established that it did not have a service contract with the building manager, defendant Milford Management Corp.; that Milford was responsible for control and inspection of the sliding doors that caused plaintiff's injuries; that defendant performed work on the sliding doors on an as needed basis as determined by Milford; that it did not displace Milford's duty to maintain the doors in a safe condition; and that the record contains no evidence that it created an unreasonable risk of harm or increased a risk of harm on those occasions when it made repairs to the doors ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). In its last service call before the accident, defendant repaired the doors' track, not the sensors, which apparently caused the doors to close before plaintiff had passed between them. Although defendant had installed those sensors, there is no evidence that there were any problems with them. Neither plaintiff, who had visited the building many times before the accident, nor Milford, whose employees inspected the doors by walking through them, was aware of any malfunctions of the sensors between the date of the installation and the date of plaintiff's accident.

Plaintiff's expert failed to provide an evidentiary foundation for his conclusion that defendant failed to properly and timely repair, maintain and inspect the sliding doors ( see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ). In...

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4 practice notes
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • 25 Abril 2014
    ...Dep't 2010); Grant v. Caprice Mgt. Corp., 43 A.D.3d 708, 709 (1st Dep't 2007). See Eliasberg v. Memorial Sloan-Kettering Cancer Ctr., 79 A.D.3d 628 (1st Dep't 2010); Corrales v. Reckson Assoc. Realty Corp., 55 A.D.3d 469. 470 (1st Dep't 2008). Short of summary judgment dismissing the compla......
  • Akter v. Denis P. Mullarkey, LLC, Index No.: 116811/09
    • United States
    • United States State Supreme Court (New York)
    • 19 Abril 2012
    ...v. Kone, Inc., 2012 WL 1123746, *1, 2012 NY App Div LEXIS 2493, *2 (1st Dept 2012); Eliasberg v. Memorial Sloan-Kettering Cancer Ctr., 79 A.D.3d 628, 628 (1st Dep't 2010); Parris v. Port of N. Y. Auth., 47 A.D.3d 460, 461 (1st Dep't 2008).Page 12 Even without considering Carrajat's affidavi......
  • People v. Fleming
    • United States
    • New York Supreme Court Appellate Division
    • 28 Diciembre 2010
    ...among other things, his statement after the crime to a testifying accomplice. We perceive no basis for reducing the sentence as excessive.79 A.D.3d 628Defendant's remaining challenges to his sentence are without...
  • Florio v. Kosimar
    • United States
    • New York Supreme Court Appellate Division
    • 28 Diciembre 2010
    ...departed from accepted practice by, inter alia, failing to perform other testing before ruling out an infection. Although defendant915 N.Y.S.2d 43claimed that his duty of care to plaintiff was limited to determining whether plaintiff's swelling might compromise his airway, issues remain as ......
4 cases
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • 25 Abril 2014
    ...Dep't 2010); Grant v. Caprice Mgt. Corp., 43 A.D.3d 708, 709 (1st Dep't 2007). See Eliasberg v. Memorial Sloan-Kettering Cancer Ctr., 79 A.D.3d 628 (1st Dep't 2010); Corrales v. Reckson Assoc. Realty Corp., 55 A.D.3d 469. 470 (1st Dep't 2008). Short of summary judgment dismissing the compla......
  • Akter v. Denis P. Mullarkey, LLC, Index No.: 116811/09
    • United States
    • United States State Supreme Court (New York)
    • 19 Abril 2012
    ...v. Kone, Inc., 2012 WL 1123746, *1, 2012 NY App Div LEXIS 2493, *2 (1st Dept 2012); Eliasberg v. Memorial Sloan-Kettering Cancer Ctr., 79 A.D.3d 628, 628 (1st Dep't 2010); Parris v. Port of N. Y. Auth., 47 A.D.3d 460, 461 (1st Dep't 2008).Page 12 Even without considering Carrajat's affidavi......
  • People v. Fleming
    • United States
    • New York Supreme Court Appellate Division
    • 28 Diciembre 2010
    ...among other things, his statement after the crime to a testifying accomplice. We perceive no basis for reducing the sentence as excessive.79 A.D.3d 628Defendant's remaining challenges to his sentence are without...
  • Florio v. Kosimar
    • United States
    • New York Supreme Court Appellate Division
    • 28 Diciembre 2010
    ...departed from accepted practice by, inter alia, failing to perform other testing before ruling out an infection. Although defendant915 N.Y.S.2d 43claimed that his duty of care to plaintiff was limited to determining whether plaintiff's swelling might compromise his airway, issues remain as ......

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