Sanchez v. 1067 Fifth Ave. Corp.

• Decision Date: 08 December 2020
• Docket Number: 12122,Index No. 301451/13,Case No. 2019-03453
• Citation: Sanchez v. 1067 Fifth Ave. Corp., 189 A.D.3d 492, 137 N.Y.S.3d 336 (N.Y. App. Div. 2020)
• Parties: Silvia SANCHEZ, Plaintiff–Respondent, v. 1067 FIFTH AVENUE CORP., et al., Defendants–Respondents–Appellants, John A. van Deusen & Associates, Inc., Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 492

137 N.Y.S.3d 336

Silvia SANCHEZ, Plaintiff–Respondent,

v.1067 FIFTH AVENUE CORP., et al., Defendants–Respondents–Appellants,John A. van Deusen & Associates, Inc., Defendant–Appellant–Respondent.

12122

Index No. 301451/13

Case No. 2019-03453

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

ENTERED: December 8, 2020

Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford (Lynn Abelson Liebman of counsel), for appellant-respondent.

Law Office of Vincent D. McNamara, East Norwich (Charles D. Teixeira of counsel), for 1067 Fifth Avenue Corp., and Douglas Elliman Property Management, respondents-appellants.

Gottlieb Siegel & Schwartz, LLP, New York (Lauren M. Solari of counsel), for American Elevator & Machine Corp., respondent-appellant.

Pollack Pollack Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Acosta, P.J., Mazzarelli, Moulton, Gonza´lez, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about June 21, 2019, which denied defendants' motions for summary judgment dismissing the complaint and all cross claims against them, unanimously modified, on the law, to grant the motions of defendants 1067 Fifth Avenue Corp. (1067 Fifth) and Elliman Property Management (Elliman) and John A. Van Deusen & Associates, Inc. (VDA), and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint and all cross claims as against 1067 Fifth and Elliman and VDA.

Plaintiff alleged that while she was attempting to exit the service elevator onto the sixth floor landing of 1067 Fifth Avenue, the inner gate of the elevator closed on her, pinning her right shoulder between the gate frame of the door, and descended to the first floor of the building. As the elevator descended, plaintiff injured her shoulder, neck, and back when she pulled her arm free. 1067 Fifth and Elliman were the owner and manager, respectively, of the building. Defendant American Elevator and Machine Corp. (American) was an elevator maintenance company retained by 1067 Fifth and Elliman to perform maintenance on the building's elevators, and VDA was hired by American to consult on a project to modernize the elevators.

Plaintiff failed to establish through the use of direct evidence that there was an issue of fact whether any of the defendants had actual or constructive notice of the defect that caused her injury. The building's superintendent did not receive any complaints about the defect, and American and VDA's mechanics and engineers had never heard of a similar condition. Plaintiff herself testified that she had never seen the elevator move before the inner gate was shut. Nevertheless, plaintiff could still establish an issue of fact on the issue of defendants' negligence under a theory of res ipsa loquitur.

There is no genuine dispute regarding whether the accident was one that does not ordinarily occur in the absence of negligence or whether plaintiff contributed to her injuries (see Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, 655 N.Y.S.2d 844, 678 N.E.2d 456 [1997] ). However, the third requirement of res ipsa loquitur, that the accident be caused by an agency or instrumentality within the exclusive control of the defendant ( id. ), has not been met as to 1067 Fifth and Elliman, since they had ceded all maintenance and repair...