Lonigro v. WFP Tower B. Co.

• Citation: 199 A.D.3d 573,158 N.Y.S.3d 84
• Decision Date: 23 November 2021
• Docket Number: 14554,Index Nos. 152232/15,595096/20,Case No. 2020-04839
• Parties: Frank LONIGRO et al., Plaintiffs-Respondents-Appellants, v. WFP TOWER B. CO. L.P., et al., Defendants-Appellants-Respondents, Brookfield Asset Management, LLC, Defendant. WFP Tower B. Co. L.P., Third-Party Plaintiff-Appellant-Respondent, Brookfield Asset Management, LLC, Third-Party Plaintiff, v. Structure Tone Inc., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 573
158 N.Y.S.3d 84

Frank LONIGRO et al., Plaintiffs-Respondents-Appellants,
v.
WFP TOWER B. CO. L.P., et al., Defendants-Appellants-Respondents,

Brookfield Asset Management, LLC, Defendant.

WFP Tower B. Co. L.P., Third-Party Plaintiff-Appellant-Respondent,

Brookfield Asset Management, LLC, Third-Party Plaintiff,
v.
Structure Tone Inc., Third-Party Defendant-Respondent.

14554
Index Nos. 152232/15
595096/20
Case No. 2020-04839

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

ENTERED November 23, 2021

158 N.Y.S.3d 85

Kaufman Dolowich & Voluck, White Plains (Matthew Rosen of counsel), for appellants-respondents.

Sullivan Papain Block McGrath Coffinas & Cannavo P.C., New York (Christopher J. DelliCarparini of counsel), for respondents-appellants.

Cullen and Dykman LLP, New York (Daniel P. Mevorach of counsel), for respondent.

Renwick, J.P., Kapnick, Kennedy, Mendez, JJ.

158 N.Y.S.3d 86

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 19, 2020, which, to the extent appealed from as limited by the briefs, granted defendants-appellants’ motion for summary judgment dismissing the complaint as against WFP Tower B. Co. L.P. (WFP), and denied the motion as to the other defendants, granted plaintiffs’ motion to preclude defendants from relying on an affidavit by one of plaintiffs’ treating physicians, granted plaintiffs’ motion for a protective order seeking to vacate defendants’ subpoena of the treating physician, and denied plaintiffs’ motion for an adverse inference charge at trial based on spoliation of evidence, unanimously modified, on the law, to the extent of granting plaintiffs’ motion for an adverse inference, and otherwise affirmed, without costs.

This action arises from injuries sustained by plaintiff Frank Lonigro when he was a passenger in an elevator that dropped and abruptly stopped. Plaintiffs sue, among others, both the owner of the property, WFP, and Thyssenkrup Elevator Corporation (TEC), the company hired by the owner to do regular maintenance work on the elevator system.

Supreme Court properly denied TEC's motion for summary judgment. TEC failed to establish that the doctrine of res ipsa loquitur does not apply in this case, in which plaintiff testified that he was injured after he entered an elevator and the elevator descended rapidly and stopped abruptly. Contrary to TEC's contention, an accident of this type does not ordinarily occur in the absence of negligence (see Orea v. NH Hotels USA, Inc., 187 A.D.3d 476, 478, 133 N.Y.S.3d 252 [1st Dept. 2020] ; see also Mejia v....