Rogers v. Dorchester Associates

• Decision Date: 20 June 1972
• Parties: Adele ROGERS, Plaintiff-Respondent, v. DORCHESTER ASSOCIATES, Defendant, and Millstein Associates and Milford Management Corp., Defendants-Appellants, and Otis Elevator Company, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 677

333 N.Y.S.2d 677

39 A.D.2d 878

Adele ROGERS, Plaintiff-Respondent, v. DORCHESTER ASSOCIATES, Defendant, and Millstein Associates and Milford Management Corp.,

Defendants-Appellants, and Otis Elevator

Company, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division, First Department.

June 20, 1972.

L. Howard, New York City, for plaintiff-respondent.

H. F. Cumisky, New York City, for defendants-appellants.

W. F. McNulty, New York City, for defendant-appellant-respondent.

Before McGIVERN, J.P., and MARKEWICH, KUPFERMAN, McNALLY and EAGER, JJ.

PER CURIAM.

Judgment, Supreme Court, New York County, entered on December 24, 1971, following a trial before a jury, modified on the law to strike the recovery of plaintiff against defendant Otis Elevator Company and to dismiss the complaint and sever the action as to said defendant, and judgment, otherwise affirmed. Plaintiff-respondent shall recover of defendants-appellants Millstein and Milford one bill of $50 costs and disbursements; and defendant-appellant-respondent Otis shall recover of plaintiff-respondent and defendants-appellants Millstein and Milford one bill of $50 costs and disbursements.

In order to make out a case against Otis, it must be shown either that Otis had prior knowledge of the condition which caused the defect causing the elevator door to close improperly and failed to act with reasonable care to correct it, or that it failed to use reasonable care to discover and then correct the condition which should have been found. (Koch v. Otis Elevator Co., 10 A.D.2d 464, 467, 200 N.Y.S.2d 700, 702.) Although a witness called on this aspect of the case testified that during a six month period prior to July 28, 1970 (the date of the accident) there were 'more than two' times that the elevator door would not retract and close normally, he could not recall the last time prior to July 28, 1970 that there was difficulty with the elevator door. The plaintiff's testimony was equally indefinite; she testified that the elevator was out of order at a time 'maybe about six months or so' prior to the accident. Thus, the record falls short of establishing knowledge of, or a basis for a finding of constructive notice of Otis of any defective condition.

The dissent stresses the failure of the defendant Otis to call certain employee witnesses whose testimony might have helped plaintiff in establishing a prima facie case. Certainly, however, to paraphrase what was held in the landmark case of Galbraith v. Busch, 267 N.Y. 230, 233, 196 N.E. 36, 37, 'no inference unfavorable to (defendant) can be drawn from (the) silence (of those witnesses) if the plaintiff's proof is insufficient to show any negligence on (defendant's) part. In a negligence action the plaintiff always has the burden of showing failure by the defendant of some duty owing to the plaintiff. That burden can never be shifted to the defendant. * * * (T)he duty upon the defendant of going forward and producing evidence to rebut an inference or presumption of negligence cannot arise unless the evidence of the plaintiff justifies such inference or presumption.' Here, simply stated, the plaintiff's proof was insufficient as a matter of law to establish a prima facie case. In any event, if we did not dismiss, we would set aside the verdict against Otis and order a new trial on the ground that the verdict is against the weight of evidence.

The building was owned by Millstein Associates and managed by Milford Management Corp. Milford, the agent, was a disclosed agent of a known principal and ordinarily cannot be held liable for the principal's legal responsibilities. We are familiar with the rule that failure to inspect and repair an elevator is nonfeasance for which an agent is not liable unless it had complete and exclusive control of the building. (Gardner v. 1111 Corp., 286 App.Div. 110, 141 N.Y.S.2d 552, affd. 1 N.Y.2d 758, 152 N.Y.S.2d 303, 135 N.E.2d 55.) This issue, however, was not raised at the trial. The said defendants were represented jointly by counsel at the trial and there was no claim of any distinction between the joint responsibility of these defendants to the plaintiff. Furthermore, there was evidence supporting a finding of joint possession and control by the owner and the agent of the building and elevator. It is the rule that 'it is not necessary for the applicability of the Res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage'. (Schroeder v. City & County, Savings Bank, Albany, 293 N.Y. 370, 374, 57 N.E.2d 57, 59. See, further, 41 N.Y.Jur., Negligence, § 92.)

All concur except McGIVERN, J.P., and KUPFERMAN, J., who dissent in the following memorandum by McGIVERN, J.P.:

I would not go so far as to dismiss out of hand the complaint against the Otis Elevator Company. There was sufficient evidence to warrant the jury passing on the issue of fact as to whether or not Otis had knowledge of the condition of the elevator, and also whether Otis negligently performed any of the repairs it undertook to do. Three witnesses testified for the plaintiff on the factual issue of notice, and on the issue of repairs; the Otis presentation was conspicuous by the absence of crucial witnesses, I.e., the repairmen. The plaintiff said she had used the specific elevator many times within a period of five or six months before the accident, and on each occasion the doors would close at a normal rate until the half-way point, then they would accelerate so that they would impulsively close with a bang. She also said the same elevator had been out of operation of few times within the six month period, and she saw men working on it. And there was corroborating testimony by a neighbor, and to a degree by Patrolman Florie.

As for the defendant Otis, Otis did not deny it attempted to repair the elevator. To the contrary. Its own Exhibit B indicates an expectation of yet further repairs. And yet, despite the court's express interest in some further elucidation of the nature of these repairs, the defendant forthwith rested. At this stage of the evidence, the defendant made the misreckoning of not going forward. This, coupled with the fact that none of the repairmen, who actually worked on the elevator, were called on to testify, is sufficient, together with all of the other facts and circumstances of the case, to make out a fair jury question. On well-known principles, the jury was entitled to draw the strongest inferences against Otis which the opposing evidence supported. Noce Bros. v. Kaufman...