Sanchez v. New Scandic Wall Ltd. P'ship

• Decision Date: 29 December 2016
• Citation: 2016 N.Y. Slip Op. 08962,42 N.Y.S.3d 802 (Mem),145 A.D.3d 643
• Parties: Dilenia SANCHEZ, Plaintiff–Appellant, v. NEW SCANDIC WALL LIMITED PARTNERSHIP, et al., Defendants/Third–Party Plaintiffs–Respondents, Schindler Elevator Corp., Third–Party Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 643

42 N.Y.S.3d 802 (Mem)

2016 N.Y. Slip Op. 08962

Dilenia SANCHEZ, Plaintiff–Appellant,

v. NEW SCANDIC WALL LIMITED PARTNERSHIP, et al., Defendants/Third–Party Plaintiffs–Respondents,Schindler Elevator Corp., Third–Party Defendant–Respondent.

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

Dec. 29, 2016.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for New Scandic Wall Limited Partnership and 40 Wall Limited Partnership, respondents.

McMahon, Martine & Gallagher, LLP, Brooklyn (Kristina M. Scotto of counsel), for Schindler Elevator Corp., respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 8, 2015, which, inter alia, granted third-party defendant's motion and defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants and third-party defendant demonstrated their prima facie entitlement to summary judgment by presenting evidence showing that the elevators were regularly inspected, and the door of the subject elevator was operating properly before and after plaintiff was struck in the shoulder by the closing door, while attempting to enter it. Moreover, even if a defect existed, they demonstrated that they did not create or have actual or constructive notice of it (see Santoni v. Bertelsmann Prop., Inc., 21 A.D.3d 712, 713, 800 N.Y.S.2d 676 [1st Dept.2005] ; Lasser v. Northrop Grumman Corp., 55 A.D.3d 561, 562, 865 N.Y.S.2d 301 [2d Dept.2008] ). The doctrine of res ipsa loquitur is inapplicable in this case, as defendant had ceded all maintenance and repair to third-party defendant Schindler Elevator Corp. (see Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621, 623, 518 N.Y.S.2d 776, 512 N.E.2d 297 [1987] ; Fasano v. Euclid Hall Assoc., L.P., 136 A.D.3d 478, 479, 24 N.Y.S.3d 636 [1st Dept.2016] ; Hodges v. Royal Realty Corp., 42 A.D.3d 350, 839 N.Y.S.2d 499 [1st Dept.2007] ). Moreover, plaintiff admits that she was not aware of the door closing until it hit her (see Graham v. Wohl, 283 A.D.2d 261, 724 N.Y.S.2d 416 [1st Dept.2001] ), and she offers no expert affidavit or other evidence of any malfunction in the door, which would cause it to close unusually quickly. She also admits that the elevator door opened immediately after it hit her, and, as noted above, that the elevator operated properly before and after the incident (see Lasser, 55 A.D.3d at 562, ...