San Andres v. 1254 Sherman Ave. Corp.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: TOM
• Citation: 942 N.Y.S.2d 104,2012 N.Y. Slip Op. 02956,94 A.D.3d 590
• Parties: Narcisa SAN ANDRES, Plaintiff–Respondent–Appellant, v. 1254 SHERMAN AVE. CORP., et al., Defendants–Respondents–Appellants,Eltech Industries, Inc., Defendant–Appellant–Respondent.
• Decision Date: 19 April 2012

2012 N.Y. Slip Op. 02956
94 A.D.3d 590
942 N.Y.S.2d 104

Narcisa SAN ANDRES, Plaintiff–Respondent–Appellant,
v.
1254 SHERMAN AVE. CORP., et al., Defendants–Respondents–Appellants,Eltech Industries, Inc., Defendant–Appellant–Respondent.

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

April 19, 2012.

[942 N.Y.S.2d 105]

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Joseph P. Wodarski and Deborah J. Denenberg of counsel), for appellant-respondent.

Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for Narcisa San Andres, respondent-appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Stephen J. Molinelli of counsel), for 1254 Sherman Ave. Corp. and Dougert Management Corp., respondents-appellants.TOM, J.P., ANDRIAS, CATTERSON, MOSKOWITZ, ROMÁN, JJ.

[94 A.D.3d 590] Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered November 2, 2009, which granted defendants 1254 Sherman Avenue Corp. and Dougert Management's (collectively, Sherman) motion for summary judgment dismissing the complaint as against them, and denied defendant Eltech Industries, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to grant Eltech's motion, and otherwise affirmed, without costs. Order, same court and Justice, entered July 8, 2010, which, upon reargument, granted Sherman's motion for summary judgment dismissing Eltech's cross claims as against it and for summary judgment on its indemnification claims against Eltech, unanimously modified, on the law, to deny the motion as to the indemnification claims against Eltech, and otherwise affirmed, without costs. Order, same court and Justice, entered on or about January 14, 2011, which, upon plaintiff's and Eltech's motions to resettle the January 8, 2010 order, denied Sherman's motion for summary judgment dismissing the complaint as against it to the extent the complaint alleges that Sherman is vicariously liable for Eltech's acts, unanimously reversed, on the law, without costs, and the motions to resettle denied.

Plaintiff alleges that she tripped and injured her knee as she entered an elevator that had stopped “a little bit” or approximately four inches higher than the floor. Plaintiff did not notice that the elevator had misleveled before she fell and did not report the incident to Sherman. While she states that there was water on the floor both outside and inside the elevator,

[942 N.Y.S.2d 106]

as [94 A.D.3d...