Roserie v. Alexander's Kings Plaza, LLC

• Citation: 171 A.D.3d 822,97 N.Y.S.3d 174
• Decision Date: 03 April 2019
• Docket Number: Index No. 26641/11,2016–10159,26641/11
• Court: New York Supreme Court Appellate Division
• Parties: Sophia ROSERIE, Respondent-Appellant, v. ALEXANDER'S KINGS PLAZA, LLC, et al., Defendants, Schindler Elevator Corp., Appellant-Respondent.

171 A.D.3d 822

97 N.Y.S.3d 174

Sophia ROSERIE, Respondent-Appellant,

v. ALEXANDER'S KINGS PLAZA, LLC, et al., Defendants,Schindler Elevator Corp., Appellant-Respondent.

2016–10159

Index No. 26641/11

26641/11

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

Argued—December 4, 2018

April 3, 2019

Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Patrick J. Engle and Kevin O'Reilly of counsel), for appellant-respondent.

Ogen & Sedaghati, P.C., New York, N.Y. (Eitan A. Ogen of counsel), for respondent—appellant.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Schindler Elevator Corp. appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated August 18, 2016. The order, insofar as appealed from, denied that branch of the motion of the defendant Schindler Elevator Corp. which was for summary judgment dismissing the complaint insofar as asserted against it. The order, insofar as cross-appealed from, granted that branch of the motion of the defendant Schindler Elevator Corp., which was for summary judgment dismissing the plaintiff's claim for damages relating to exacerbation of her Chiari malformation

.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff allegedly was injured while riding in an elevator in the building where she worked when the elevator suddenly dropped and came to an abrupt stop. The plaintiff commenced this action against, among others, the defendant Schindler Elevator Corp. (hereinafter Schindler Elevator), the elevator maintenance company that serviced the elevators in the building. Schindler Elevator moved for summary judgment dismissing the complaint insofar as asserted against it, or, in the alternative, for summary judgment dismissing the plaintiff's claim for damages relating to exacerbation of her Chiari malformation

. In an order dated August 18, 2016, the Supreme Court denied that branch of Schindler Elevator's motion which was for summary judgment dismissing the complaint insofar as asserted against it, and granted that branch of its motion which was for summary judgment dismissing the plaintiff's claim for damages relating to exacerbation of her Chiari malformation

.

"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 ; see Nunez v. Chase Manhattan Bank , 155 A.D.3d 641, 643, 63 N.Y.S.3d 481 ; Orahovac v. CF Lex Assoc. , 147 A.D.3d 968, 969, 48 N.Y.S.3d 161 ). "Moreover, negligence in the maintenance of an elevator may be inferred from evidence of prior malfunctions" ( Dykes v. Starrett City, Inc. , 74 A.D.3d 1015, 1016, 904 N.Y.S.2d 465 ; see Rogers v. Dorchester Assoc. , 32 N.Y.2d at 557, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403 ).

Here, Schindler Elevator failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it. The evidence submitted in support of the motion included, inter alia, evidence of multiple service calls to repair the subject elevator, including one which occurred the day before the accident. Schindler Elevator's submissions failed to establish, prima facie, that the elevator was not defective, or that Schindler Elevator did not have actual or constructive notice of a defective condition (see Kucevic v. Three Park Ave. Bldg. Co., L.P. , 55 A.D.3d 792, 793, 866 N.Y.S.2d 314 ; Gilbert v. Kingsbrook Jewish Ctr. , 4 A.D.3d 392, 393, 771 N.Y.S.2d 399 ). Therefore, we agree with the Supreme Court's denial of...