Papapietro v. Kone, Inc.

• Decision Date: 17 December 2014
• Docket Number: 2013-05127
• Citation: 123 A.D.3d 894,999 N.Y.S.2d 142,2014 N.Y. Slip Op. 08817
• Parties: Victor PAPAPIETRO, appellant, v. KONE, INC., respondent.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 894

999 N.Y.S.2d 142

2014 N.Y. Slip Op. 08817

Victor PAPAPIETRO, appellant

v.KONE, INC., respondent.

2013-05127

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

Dec. 17, 2014.

Scott Baron & Associates, P.C., Howard Beach, N.Y., for appellant.

Ansa Assuncao, LLP, White Plains, N.Y. (Thomas O. O'Connor of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Greco, Jr., J.), entered April 16, 2013, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

On October 28, 2009, the plaintiff, an employee of the United States Postal Service, allegedly was injured at the Madison Square Station postal facility when he was struck on the head by a freight elevator gate after its alarm bell and strobe light failed to activate to warn him that the gate was about to close. Thereafter, the plaintiff commenced this action against the defendant, the company retained to service and maintain the elevator. He alleged that the elevator malfunctioned due to the defendant's negligent failure to maintain it in a safe condition. After discovery, the defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.

“An elevator company which 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 found” (Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403 ). Here, the defendant submitted maintenance records for the subject elevator, including work tickets for a period of approximately one year preceding the plaintiff's accident and a “callout report,” which indicated that approximately six months before the accident, the defendant was called to repair the alarm bell. The defendant also submitted the plaintiff's deposition transcript, wherein he testified that, prior to his accident, there were times when the alarm bell and strobe light did not activate and that two other individuals had been struck on the head by the gate prior to his accident. Thus, the...