O'Neill v. Mildac Properties

• Decision Date: 04 June 1990
• Citation: 162 A.D.2d 441,556 N.Y.S.2d 387
• Parties: Margaret O'NEILL, Plaintiff-Respondent, v. MILDAC PROPERTIES, Defendant-Appellant, Marcato Elevator Company, Inc., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 387

556 N.Y.S.2d 387

162 A.D.2d 441

Margaret O'NEILL, Plaintiff-Respondent, v. MILDAC PROPERTIES, Defendant-Appellant Marcato Elevator Company, Inc., Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

June 4, 1990.

Weiner, Aliano & Catlett, Nanuet (Richard J. Weiner and William J. Rada, of counsel), for defendant-appellant.

William M. Simon, Forest Hills, for plaintiff-respondent.

Kaplan, Oshman, Helfenstein & Matza, New York City (Hugh J. Helfenstein, Charles S. Hefter and Stuart S. Schwartz, of counsel), for defendant-respondent.

Before BRACKEN, J.P., and RUBIN, ROSENBLATT and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendant Mildac Properties appeals (1) from a judgment of the Supreme Court, Westchester County (Delaney, J.), entered June 13, 1989, which, upon jury verdicts on the issues of liability and damages, is in favor of the plaintiff and against it in the principal sum of $500,000, and is in favor of its codefendant and against it on its cross claim, and (2) from an order of the same court, dated July 11, 1989, which denied its posttrial motion to set aside the jury's verdicts pursuant to CPLR 4404.

ORDERED that the judgment is modified, on the facts and as an exercise of discretion, by deleting the provision thereof which awarded the plaintiff the principal sum of $500,000, and substituting therefor provision granting the appellant a new trial as to damages unless the plaintiff shall serve and file in the Office of the Clerk of the Supreme Court, Westchester County, a stipulation consenting to reduce the verdict as to damages to the principal sum of $350,000, and to the entry of an amended judgment accordingly; as so modified, the judgment is affirmed; and it is further,

ORDERED that the plaintiff's time to serve and file the stipulation is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry; and it is further,

ORDERED that in the event the plaintiff so stipulates, then the judgment in her favor, as so reduced and amended, is affirmed; and it is further,

ORDERED that the appeal from so much of the order as denied that branch of the appellant's motion which was to set aside the verdict as to damages is dismissed, in light of our determination on the appeal from the judgment, and the order is otherwise affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

On June 17, 1986, the plaintiff Margaret O'Neill, age 71, sustained personal injuries when she fell as she was exiting from a small passenger elevator in a professional office building. The building and elevator were both owned by the defendant Mildac Properties (hereinafter Mildac) but the elevator was serviced by the defendant Marcato Elevator Company, Inc. (hereinafter Marcato), pursuant to a written contract between it and Mildac.

The plaintiff alleged that she was injured due to a four-inch misleveling of the elevator above the building's lobby landing.

The trial court properly denied the defendant Mildac's motion to set aside the verdict on the issue of liability, and found that verdict in accord with the evidence. Upon a fair interpretation of the evidence (see, Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184) adduced at the trial on the issue of liability, the jury here could have found that Mildac had actual or constructive notice of the defective elevator condition and that the misleveling malfunction arose from the fact that the elevator was too small to accommodate that building's expanding needs.

The testimony of Larry Katz, Marcato's mechanic who serviced this particular elevator, that usage of the elevator, loading, and heat affected the elevator's leveling capabilities, was confirmed by Mildac's own expert witness, John Weldin. Additionally, John Weldin admitted that it was standard practice in his elevator company to recommend a change of elevators to any owner of a building using the type of elevator involved...