Longo v. Armor Elevator Co., Inc.
| Decision Date | 21 August 2003 |
| Citation | 763 N.Y.S.2d 597,307 A.D.2d 848 |
| Court | New York Supreme Court — Appellate Division |
| Parties | FRANCESCA LONGO, Respondent,<BR>v.<BR>ARMOR ELEVATOR CO., INC., Respondent, and<BR>600 THIRD AVENUE ASSOCIATES et al., Appellants. (Action No. 1.)<BR>MICHELE C. PETITT et al., Respondents-Appellants,<BR>v.<BR>ARMOR KONE ELEVATOR CO., INC., Respondent, and<BR>600 THIRD AVENUE ASSOCIATES et al., Appellants-Respondents.<BR>MICHELE C. PETITT et al., Appellants,<BR>v.<BR>ARMOR KONE ELEVATOR CO., INC., Defendant, and<BR>600 THIRD AVENUE ASSOCIATES et al., Respondents. (Action No. 2.) |
The challenged resolving order (CPLR 3126 [1]) was an appropriate disclosure sanction for the Building defendants' repeated and continuing failure to produce documents that they were ordered to produce in a decision of this Court on a previous appeal (278 AD2d 127, 129 [2000]), or to adequately explain their inability to do so (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Jackson v City of New York, 185 AD2d 768, 770 [1992]). However, absent a clear showing of spoliation, we reject plaintiff's argument that other, more severe sanctions should have been imposed.
The IAS court should have granted the Building defendants' motions to dismiss the negligent infliction of emotional distress and punitive damages claims. The Building defendants owed a nondelegable duty to maintain the premises in a reasonably safe condition (see Sciolaro v Asch, 198 NY 77, 81-83 [1910]; Gallagher v St. Raymond's R.C. Church, 21 NY2d 554, 557 [1968]). Under the applicable provisions of the New York City Building Code, the elevator cable defects involved in causing plaintiffs' alleged injuries are defined as conditions "dangerous to human life and safety" (1 RCNY 11-02 [a]). That the Building defendants had notice of a dangerous condition does not satisfy the requirements for either a negligent infliction of emotional distress claim or a punitive damages remedy.
For conduct to serve as a basis for punitive damages, there must be evidence of malice or a wanton disregard for public safety (see Bothmer v Schooler, Weinstein, Minsky & Lester, 266 AD2d 154 [1999]; Camillo v Geer, 185 AD2d 192, 194 [1992]). As the IAS court properly found, the Building defendants made prima facie showings that their conduct did not rise to this standard since various elevator improvements had been effected since their 1982 acquisition. Consultants had been retained to evaluate elevator performance and a modernization project had been contracted,...
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