Kawka v. 135-55 35th Realty, LLC

• Decision Date: 04 May 2016
• Docket Number: 2014-02973, Index No. 266/10.
• Citation: 139 A.D.3d 677,2016 N.Y. Slip Op. 03474,31 N.Y.S.3d 173
• Parties: Andrzei KAWKA, appellant, v. 135–55 35th REALTY, LLC, et al., respondents (and a third-party action).
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 677

31 N.Y.S.3d 173

2016 N.Y. Slip Op. 03474

Andrzei KAWKA, appellant,

v.135–55 35th REALTY, LLC, et al., respondents (and a third-party action).

2014-02973, Index No. 266/10.

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

May 4, 2016.

Melcer Newman, PLLC, New York, N.Y. (Jeffrey B. Melcer of counsel), for appellant.

Gallo Vitucci & Klar, LLP, New York, N.Y. (Kimberly A. Ricciardi of counsel), for respondent Eltech Industries, Inc.

Margaret G. Klein & Associates (Mauro Lilling Naparty, LLP, Woodbury, N.Y. [Matthew W. Naparty, Gregory A. Cascino, and Kathryn M. Beer], of counsel), for respondent 135–55 35th Realty, LLC.

JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated January 13, 2014, as granted the separate motions of the defendants 135–55 35th Realty, LLC, and Eltech Industries, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them.

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

The plaintiff allegedly was injured while pushing a hand truck onto an elevator at the subject premises, which were owned by the defendant 135–55 35th Realty, LLC (hereinafter Realty). The plaintiff was moving items including a stove and cabinet doors from an apartment that was being renovated. The elevator door closed on the cabinet doors, which were not secured in any way, and the doors fell on the plaintiff's left foot. The defendant Eltech Industries, Inc. (hereinafter Eltech), had a contract to perform regular maintenance on the subject elevator. The plaintiff commenced this action to recover damages for his personal injuries, and Realty and Eltech separately moved for summary judgment dismissing the complaint. The Supreme Court granted their separate motions.

The Supreme Court properly granted the motions of Realty and Eltech for summary judgment dismissing the complaint insofar as asserted against each of them. Realty established its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that it did not have actual or constructive notice of any defect in the elevator door (see Goodlow v. 724 Fifth Ave. Realty, LLC, 127 A.D.3d 1138, 8 N.Y.S.3d 375 ; Tucci v. Starrett City, Inc., 97 A.D.3d 811, 949 N.Y.S.2d 419 ). In opposition, the plaintiff failed to raise a triable issue of fact.

Eltech established its prima facie entitlement to judgment as a matter of law by submitting the elevator maintenance contract between Eltech and S.W. Management, LLC, which provided that Eltech did not assume possession, management, or control of any part of the equipment. The contract further provided that Eltech assumed no responsibility for certain items, including hoistway doors or cab doors. An elevator company that 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...