Ezzard v. One E. River Place Realty Co., 114803/08, 14315

• Court: New York Supreme Court Appellate Division
• Writing for the Court: GISCHEJ.
• Citation: 129 A.D.3d 159,2015 N.Y. Slip Op. 03791,8 N.Y.S.3d 195
• Parties: Danielle EZZARD, Plaintiff–Respondent–Appellant, v. ONE EAST RIVER PLACE REALTY COMPANY, LLC, et al., Defendants–Respondents, New York Elevator & Electrical Corp., Defendant–Appellant.
• Docket Number: 114803/08, 14315
• Decision Date: 05 May 2015

129 A.D.3d 159
8 N.Y.S.3d 195
2015 N.Y. Slip Op. 03791

Danielle EZZARD, Plaintiff–Respondent–Appellant
v.
ONE EAST RIVER PLACE REALTY COMPANY, LLC, et al., Defendants–Respondents
New York Elevator & Electrical Corp., Defendant–Appellant.

114803/08, 14315

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

May 5, 2015.

8 N.Y.S.3d 196

Geringer & Dolan LLP, New York (Robert E. Coleman of counsel), for appellant.

Harnick & Harnick, P.C., New York (Robert Harnick of counsel), for respondent-appellant.

8 N.Y.S.3d 197

Hitchcock & Cummings LLP, New York (Christopher B. Hitchcock of counsel), for respondents.

PETER TOM, J.P., DIANNE T. RENWICK, RICHARD T. ANDRIAS, ROSALYN H. RICHTER, JUDITH J. GISCHE, JJ.

Opinion

GISCHE J.

129 A.D.3d 161

Plaintiff alleges that, on September 13, 2007, she tripped and fell while exiting a misleveled elevator on the first floor of a building owned by defendant One East River Place Realty Company, LLC (owner) and managed by defendant Solow Management Corp. (Solow). Solow had entered into a full service maintenance contract with, defendant New York Elevator & Electrical Corp. (NYE&E) commencing September 1, 2007, for the building's seven elevators, including weekly maintenance and emergency call-back service.

Plaintiff testified at her deposition that as she was exiting the elevator her right foot became caught in the lip of the floor, causing her to propel forward and land on one hand and knee. Plaintiff also stated that on prior occasions she had personally observed the elevator mislevel once or twice a week. In opposition to NYE&E's motion for summary judgment, plaintiff submitted a sworn affidavit stating that she “tripped and fell while exiting an elevator,” reiterating that “something was stopping my right foot from moving,” adding that she estimated the misleveling at about “2 to 2 and a half inches,” based upon her foot and ankle being blocked by the lip of the floor when the accident occurred.

Although untimely, NYE&E's motion should have been considered insofar as it presents nearly identical issues and proof as those raised by the owner and Solow in their joint summary judgment motion (Gubenko v. City of New York, 111 A.D.3d 471, 974 N.Y.S.2d 431 [1st Dept.2013] ).

All three defendants established that there had been no complaints of misleveling before plaintiff's accident and that

129 A.D.3d 162

the elevator was found to be level during City and Local Law 10 inspections performed approximately three weeks and two weeks before the accident (see San Andres v. 1254 Sherman Ave. Corp., 94 A.D.3d 590, 942 N.Y.S.2d 104 [1st Dept.2012] ). Consequently, the notice-based claims were properly dismissed against the owner and Solow. They should be dismissed against NYE&E as well because plaintiff failed to show that any of the defendants had actual or constructive notice of the misleveling condition of which she complains (Meza v. 509 Owners LLC, 82 A.D.3d 426, 918 N.Y.S.2d 78 [1st Dept.2011] ). Plaintiff's testimony of prior, unreported instances of misleveling were insufficient to establish that any of the defendants had notice of a dangerous condition (see Isaac v. 1515 Macombs, LLC, 84 A.D.3d 457, 459, 922 N.Y.S.2d 354 [1st Dept.2011], lv. denied 17 N.Y.3d 780, 2011 WL 4030048 [2011] ).

The motion court also properly found that the doctrine of res ipsa loquitur does not apply to the owner or Solow because of NYE&E's full service maintenance contract for the building's seven elevators. That contract included weekly maintenance and emergency call-back service. NYE&E's submissions, however, failed to demonstrate there was no defective condition and plaintiff has raised sufficient facts which, if believed by a jury, would support her claim against NYE&E under the doctrine based on its maintenance contract.

Res ipsa loquitur permits a fact finder to infer negligence based upon the

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sheer occurrence of an event where a plaintiff proffers sufficient evidence that (1) the occurrence is not one which ordinarily occurs in the absence of negligence; (2) it is caused by an instrumentality or agency within the defendant's exclusive control; and (3) it was not due to any voluntary action or contribution on the plaintiff's part (James v. Wormuth, 21 N.Y.3d 540, 547–548, 974 N.Y.S.2d 308, 997 N.E.2d 133 [2013] ; States v. Lourdes Hospital, 100 N.Y.2d 208, 211, 762 N.Y.S.2d 1, 792 N.E.2d 151 [2003] ). If a plaintiff establishes these elements, then the issue of negligence should be given to a jury to decide (States, 100 N.Y.2d at 212, 762 N.Y.S.2d 1, 792 N.E.2d 151 ; Miller v. Schindler El. Corp., 308 A.D.3d 312, 763 N.Y.S.2d 826 [1st Dept.2003] ).

Res ipsa loquitur does not create a presumption of negligence; rather it is a rule of circumstantial evidence that allows the jury to infer negligence (see Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 211, 818 N.Y.S.2d 792, 851 N.E.2d 1143 [2006] ). A defendant is free to rebut the inference by presenting different facts or otherwise arguing that the jury should not apply the inference in a particular case (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 [1986] ).

129 A.D.3d 163

Notice of a defect is inferred when the doctrine applies and the plaintiff need not offer evidence of actual or constructive notice in order to proceed (Dittiger v. Isal Realty Corp., 290 N.Y. 492, 494, 49 N.E.2d 980 [1943] ; Gutierrez v. Broad Fin. Ctr., LLC, 84 A.D.3d 648, 924 N.Y.S.2d 333 [1st Dept.2011] ; Gurevich v. Queens Park Realty Corp., 12 A.D.3d 566, 784 N.Y.S.2d 397 [2d Dept.2004] ). Thus, while there is no proof of actual or constructive notice in this case, res ipsa loquitur can still support plaintiff's claim against NYE&E.

We have a long established jurisprudence in this Department recognizing that elevator malfunctions do not occur in the absence of negligence, giving rise to the possible application of res ipsa loquitur (see e.g. Gutierrez v. Broad Fin. Ctr., LLC, 84 A.D.3d at 649, 924 N.Y.S.2d 333 [“the record presents a viable negligence claim as against Schindler under the doctrine of res ipsa loquitur. The alleged misleveling of the elevator was not an event that ordinarily occurs in the absence of negligence”]; Dubec v. New York City Hous. Auth., 39 A.D.3d 410, 412, 834 N.Y.S.2d 165 [1st Dept.2007] [in a case based upon a disputed issue of whether an elevator had misleveled, we held that “[t]he court properly charged the doctrine of res ipsa loquitur” notwithstanding that a retrial was required on other grounds]; Mogilansky v. 250 Broadway Assoc. Corp., 29 A.D.3d 374, 817 N.Y.S.2d 214 [1st Dept.2006] [where motion court improperly granted the defendant summary judgment, the plaintiff should be allowed to develop elevator malfunction case under res ipsa loquitur doctrine]; Miller v. Schindler El. Corp., 308 A.D.2d at 313, 763 N.Y.S.2d 826 [denial of summary judgment dismissing the complaint was upheld based on res ipsa loquitur and the plaintiff's testimony that the elevator malfunctioned when she pushed the button to go to the basement, “which testimony must be treated as true on defendant's motion for summary judgment”]; Ardolaj v. Two Broadway Land Co., 276 A.D.2d 264, 714 N.Y.S.2d 12 [1st Dept.2000] [doctrine of res ipsa loquitur available to the plaintiff at trial based on evidence of elevator misleveling]; Dickman v. Stewart Tenants Corp., 221 A.D.2d 158, 633 N.Y.S.2d 35 [1st Dept.1995] [the defendant's negligence for elevator misleveling established through the application of res ipsa loquitur]; Burgess v. Otis El. Co., 114 A.D.2d 784, 786, 495 N.Y.S.2d 376 [1st Dept.1985] [jury verdict for the plaintiff in

8 N.Y.S.3d 199

elevator case upheld under doctrine of res ipsa loquitur because misleveling “was an event of a kind which would not ordinarily occur in the absence of negligence”]...