De Sanctis v. Montgomery Elevator Company, Inc.
| Decision Date | 10 April 2003 |
| Citation | 758 N.Y.S.2d 419,304 A.D.2d 936 |
| Parties | CHRISTOPHER J. DE SANCTIS, Appellant-Respondent,<BR>v.<BR>MONTGOMERY ELEVATOR COMPANY, INC., Defendant, and<BR>MILLAR ELEVATOR COMPANY, INC., Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
In January 1993, plaintiff was injured when a passenger elevator in which he was riding allegedly malfunctioned during its descent from the first floor to the ground floor of Glens Falls City Hall in Warren County. Plaintiff commenced this personal injury action against, among others, defendant Millar Elevator Company, Inc. (hereinafter defendant), which had a contract to maintain and repair the elevator. Following joinder of issue, defendant moved for summary judgment dismissing the complaint. Supreme Court denied the motion. Plaintiff appeals from that part of Supreme Court's order precluding his reliance on the doctrine of res ipsa loquitur and defendant cross-appeals from so much of the order as denied its motion for summary judgment.
Defendant concedes that "[a]n 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 NY2d 553, 559 [1973]). In connection with its motion for summary judgment, defendant submitted maintenance records including work tickets for a period of approximately a year preceding plaintiff's accident and an affidavit from its repair technician showing monthly maintenance and inspections. The technician averred that the elevator was working properly. In addition, defendant produced service call logs that indicated no complaints associated with the ascending or descending of the elevator. Thus, defendant met its initial burden by demonstrating that it had neither actual nor constructive notice of a defective condition regarding the elevator's performance as it was ascending or descending (see Tashjian v Strong & Assoc., 225 AD2d 907, 908-909 [1996]; cf. Proctor v Rensselaer Polytechnic Inst., 277 AD2d 536, 539 [2000]).
In opposition to defendant's motion, plaintiff submitted an affidavit from an elevator expert/consultant who noted that three of defendant's work tickets referred to maintenance performed on the elevator's safe edge, which is designed to prevent closing elevator doors from crushing passengers. The expert concluded that these work tickets demonstrated that the elevator's safe edge was deteriorating. He asserted that the safe edge likely became loose and caught in the elevator's hoistway, causing the accident. Although most of the expert's remaining conclusions and assertions—which are based upon his examination of the elevator more than eight years after the accident or upon photos taken by plaintiff after the condition of the elevator had been altered—are merely speculative, the affidavit raises a material issue of fact regarding whether the repeated repairs to the safe edge should have alerted defendant to a condition that required repair (see Warner v Historic Hudson Riv. Heritage Dev. Co., 235 AD2d 987, 989 [1997]; cf. Petro v New York Life Ins. Co., 277 AD2d 213, 214 [2000]).
Contrary to plaintiff's arguments, however, Supreme Court properly determined that the...
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...that it lacked actual or constructive notice of a defective condition concerning the elevator ( see De Sanctis v. Montgomery El. Co., 304 A.D.2d 936, 936–937, 758 N.Y.S.2d 419 [2003]; Tashjian v. Strong & Assoc., 225 A.D.2d 907, 908–909, 639 N.Y.S.2d 507 [1996] ). In opposition, plaintiff s......
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