Miguel v. 41-42 Owners Corp.

• Decision Date: 02 December 2008
• Docket Number: 2007-06354.
• Citation: 57 A.D.3d 488,2008 NY Slip Op 09566,869 N.Y.S.2d 166
• Parties: LIDIA MIGUEL, Respondent, v. 41-42 OWNERS CORP., Appellant, and ARISTA ELEVATOR CO., INC., Respondent.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 488

869 N.Y.S.2d 166

2008 NY Slip Op 09566

LIDIA MIGUEL, Respondent, v. 41-42 OWNERS CORP., Appellant, and ARISTA ELEVATOR CO., INC., Respondent.

2007-06354.

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

December 2, 2008.

In an action to recover damages for personal injuries, the defendant 41-42 Owners Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated May 6, 2007, as denied its motion for summary judgment dismissing the complaint, and granted the cross motion of defendant Arista Elevator Co., Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the appeal from so much of the order as granted that branch of the cross motion of the defendant Arista Elevator Co., Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as the appellant is not aggrieved by that portion of the order (see CPLR 5511); and it is further,

Ordered that the order is modified, on the law and the facts, by deleting the provision thereof granting that branch of the cross motion of the defendant Arista Elevator Co., Inc., which was for summary judgment dismissing all cross claims asserted against it, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as reviewed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings, including conversion of the cross claims asserted by the defendant 41-42 Owners Corp. against the defendant Arista Elevator Co., Inc., into a third-party action against the defendant Arista Elevator Co., Inc., and amendment of the caption accordingly; and it is further,

Ordered that one bill of costs is awarded to the appellant payable by the defendant Arista Elevator Co., Inc., and one bill of costs is awarded to the plaintiff payable by the appellant.

The plaintiff allegedly was injured when a malfunctioning elevator door suddenly and unexpectedly closed on her leg. In her deposition testimony, the plaintiff stated that she and several other tenants had complained to the building's superintendent that the elevator door was malfunctioning in a similar way at least six months prior to her accident. The defendant 41-42 Owners Corp. (hereinafter Owners) submitted a notarized statement of the superintendent that he was never made aware of the plaintiff's accident. The statement was silent, however, as to whether he had been informed of any prior malfunctioning.

The Supreme Court properly denied that branch of Owners' motion which was for summary judgment dismissing the complaint insofar as asserted against it. Owners failed to satisfy its prima facie burden of demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]), as it failed to establish the absence of notice of the allegedly defective condition (see Carrillo v PM Realty Group, 16 AD3d 611, 612 [2005]; Casanova v Hamilton-Sharp Props., LLC, 12 AD3d 632, 633 [2004]; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532 [2003]).

Owners' contention that the defendant Arista Elevator Co.,...