Green v. City of N.Y.

• Decision Date: 03 August 2010
• Citation: 76 A.D.3d 508,906 N.Y.S.2d 587
• Parties: Reginald GREEN, appellant, v. CITY OF NEW YORK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 587

76 A.D.3d 508

Reginald GREEN, appellant,

v.CITY OF NEW YORK, et al., respondents.

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

Aug. 3, 2010.

Ginsberg & Broome, P.C., New York, N.Y. (Robert M. Ginsberg and Martin Wolf of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, Kira Wallisch, and Marta Ross of counsel), for respondent City of New York.

Sonageri & Fallon, LLC, Garden City, N.Y. (James C. DeNorscia of counsel), for respondent Schindler Elevator Corporation.

Cuttita, LLP, New York, N.Y. (Scott A. Koltun and Robert Frankfort of counsel), for respondent Gallery at Fulton Street, LLC.

STEVEN W. FISHER, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and ARIEL E. BELEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Miller, J.), dated February 3, 2009, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law and the facts, by deleting the provisions thereof granting the separate motions of the defendants Gallery at Fulton Street, LLC, and Schindler Elevator Corporation for summary judgment dismissing the complaint insofar as asserted against each of them, and substituting therefor provisions denying the respective motions; as so modified, the order is affirmed, with one bill of costs to the plaintiff, payable by the defendants Gallery atFulton Street, LLC, and Schindler Elevator Corporation.

The plaintiff, who is confined to a wheelchair, was injured when an allegedly malfunctioning door closed on his leg as he was entering an elevator in a Brooklyn shopping mall. Following the accident, the plaintiff commenced this action against the City of New York, which owned the mall, the Gallery at Fulton Street, LLC (hereinafter the Gallery), which leased and operated the mall, and Schindler Elevator Corporation (hereinafter Schindler), which had been retained by the Gallery to perform elevator maintenance services. After depositions were conducted, the defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, and the Supreme Court granted the motions. We modify.

The Gallery failed to sustain its burden of making a prima facie showing of its entitlement to judgment as a matter of law. It is undisputed that as the lessee and operator of the mall, the Gallery had a duty to maintain and repair the elevators in the premises ( see Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 562, 347 N.Y.S.2d 22, 300 N.E.2d 403; Oxenfeldt v. 22 N. Forest Ave. Corp., 30 A.D.3d 391, 392, 816 N.Y.S.2d 563), and thus can be found liable if it had actual or constructive notice of a defect in the subject elevator ( see Talapin v. One Madison Ave. Condominium, 63 A.D.3d 909, 882 N.Y.S.2d 161;Nye v. Putnam Nursing & Rehabilitation Ctr., 62 A.D.3d 767, 768, 879 N.Y.S.2d 505; Oxenfeldt v. 22 N. Forest Ave. Corp., 30 A.D.3d at 392, 816 N.Y.S.2d 563; Gilbert v. Kingsbrook Jewish Ctr., 4 A.D.3d 392, 771 N.Y.S.2d 399). Here, the Gallery's evidentiary submissions, including the deposition testimony of the plaintiff who claimed to have made prior complaints that the door of the subject elevator closed too quickly, were insufficient to eliminate all triable issues of fact as to whether it had actual or constructive notice of the allegedly malfunctioning door ( see Talapin v. One Madison Ave. Condominium, 63 A.D.3d at 911, 882 N.Y.S.2d 161; Nye v. Putnam Nursing & Rehabilitation Ctr., 62 A.D.3d at 768, 879 N.Y.S.2d 505; Miguel v. 41-42 Owners Corp., 57 A.D.3d 488, 490, 869 N.Y.S.2d 166; Gilbert v. Kingsbrook Jewish Ctr., 4 A.D.3d at 392-393, 771 N.Y.S.2d 399). Thus, the Gallery's motion for summary judgment should have been denied regardless of the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Schindler also failed to sustain its burden of making a prima facie showing of its entitlement...