Isaac v. 1515 Macombs Llc

• Decision Date: 05 May 2011
• Citation: 84 A.D.3d 457,2011 N.Y. Slip Op. 03717,922 N.Y.S.2d 354
• Parties: Linnet ISAAC, Plaintiff–Respondent,v.1515 MACOMBS, LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 457

922 N.Y.S.2d 354

2011 N.Y. Slip Op. 03717

Linnet ISAAC, Plaintiff–Respondent,

v.1515 MACOMBS, LLC, et al., Defendants–Appellants.

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

May 5, 2011.

Gallo Vitucci & Klar LLP, New York (Kimberly A. Ricciardi of counsel), for 1515 Macombs, LLC, and Chestnut Holdings of New York, Inc., appellants.Lester Schwab Katz & Dwyer, LLP., New York (John Sandercock of counsel), for Advantage Elevator Company, appellant.Quaranta & Associates, Mount Kisco (Merryl Weiner of counsel), for respondent.ANDRIAS, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ROMÁN, JJ.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 23, 2010, which, inter alia, denied defendants' motions for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment accordingly.

Plaintiff was injured on November 3, 2005, when she tripped and fell while exiting an elevator which had allegedly misleveled in a building owned by 1515 Macombs LLC and managed by Chestnut Holdings of New York, Inc. (Chestnut). Advantage Elevator Company (Advantage) was the elevator maintenance contractor. Supreme Court denied defendants' motions for summary judgment dismissing the complaint on the ground that plaintiff raised issues of fact as to actual notice of the misleveling elevator. We now reverse.

A property owner has a nondelegable duty to passengers to maintain its building's elevator in a reasonably safe manner ( Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403 [1973]; Dykes v. Starrett City, Inc., 74 A.D.3d 1015, 904 N.Y.S.2d 465 [2010] ) and may be liable for elevator malfunctions or defects causing injury to a plaintiff about which it has constructive or actual notice ( see Levine v. City of New York, 67 A.D.3d 510, 888 N.Y.S.2d 55 [2009] ), or where, despite having an exclusive maintenance and repair contract with an elevator company, it fails to notify the elevator company about a known defect ( see Oxenfeldt v. 22 N. Forest Ave. Corp., 30 A.D.3d 391, 392, 816 N.Y.S.2d 563 [2006] ). “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 at 559, 347 N.Y.S.2d 22, 300 N.E.2d 403; see Cilinger v. Arditi Realty Corp., 77 A.D.3d 880, 882–883, 911 N.Y.S.2d 75 [2010] ).

Defendants demonstrated their prima facie entitlement to summary judgment by showing that they did not have actual or constructive notice of an ongoing misleveling condition and did not fail to use reasonable care to correct a condition of which they should have been aware ( see Gjonaj v. Otis El. Co., 38 A.D.3d 384, 385, 832 N.Y.S.2d 189 [2007]; Santoni v. Bertelsmann Prop. Inc., 21 A.D.3d 712, 713, 800 N.Y.S.2d 676 [2005] ). A representative of Chestnut testified at his deposition that in 2005 he did not observe any visible signs of damage to the elevators during his personal inspections and did not receive any complaints from tenants or building staff about misleveling; that no one had been injured in a building elevator prior to plaintiff's accident; that major repairs were performed on the building's elevators in July and August, which encompassed the work recommended in Advantage's proposal of April 25, 2005; and that the elevators had been inspected by the Department of Buildings on October 26, 2005, about a week before the accident, and passed inspection. Advantage's mechanic testified at his deposition that on the several occasions that he inspected the elevator while performing monthly maintenance, he never observed a misleveling condition and that he was not aware of any such complaints. When the...