Syrnik v. Bd. of Managers of Leighton House Condo.

• Citation: 2021 NY Slip Op 05603
• Decision Date: 13 October 2021
• Docket Number: 2018-06877,Index 398/15
• Parties: Boguslawa Syrnik, appellant, v. Board of Managers of the Leighton House Condominium, et al., respondents.
• Court: United States State Supreme Court (New York)

2021 NY Slip Op 05603

Boguslawa Syrnik, appellant, v. Board of Managers of the Leighton House Condominium, et al., respondents.

No. 2018-06877, Index No. 398/15

Supreme Court of New York, Second Department

October 13, 2021

Edelman & Edelman, P.C., New York, NY (David M. Schuller and Noreen M. Giusti of counsel), for appellant.

Nicoletti Gonson Spinner Ryan Gulino Pinter, LLP, New York NY (Benjamin Gonson of counsel), for respondents Board of Managers of the Leighton House Condominium and Halstead Management, LLC.

McNamara & Horowitz, LLP, New York, NY (John T. McNamara and Salvatore Lapetina of counsel), for respondent Otis Elevator Company.

MARK C. DILLON, J.P. ANGELA G. IANNACCI, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), dated April 9, 2018. The order, insofar as appealed from, granted those branches of the motion of the defendants Board of Managers of the Leighton House Condominium and Halstead Management, LLC, and the separate motion of the defendant Otis Elevator Company, which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Otis Elevator Company which was for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendant Otis Elevator Company, and one bill of costs to the defendants Board of Managers of the Leighton House Condominium and Halstead Management, LLC, payable by the plaintiff.

The plaintiff allegedly was injured when a passenger elevator in which she was riding suddenly accelerated and then stopped abruptly. She commenced this action to recover damages for personal injuries against the defendants Board of Managers of the Leighton House Condominium and Halstead Management, LLC (hereinafter together the Leighton defendants), and the defendant Otis Elevator Company (hereinafter Otis). The Leighton House Condominium Board of Managers and Halstead Management, LLC, were the owner and managing agent, respectively, of the premises where the accident occurred, and Otis was an elevator company that had entered into an agreement with the Leighton defendants to inspect, service, maintain, and repair the elevators at the premises. The Supreme Court, inter alia, granted those branches of the Leighton defendants' motion, and Otis's separate motion, which were for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiff appeals.

"A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect, or where it fails to notify the elevator company with which it has a maintenance and repair contract about a known defect" (Goodwin v Guardian Life Ins. Co. of Am., 156 A.D.3d 765, 766 [citations omitted]). Here, the Leighton defendants submitted sufficient evidence to establish, prima facie, that they did not have actual or constructive notice of any defective condition that would cause the elevator to drop suddenly before stopping abruptly (see Lanzillo v 4 World Trade Ctr., LLC, 195 A.D.3d 907, 908; Napolitano v Jackson "78" Condominium, 186 A.D.3d 1383, 1384; Palladino v New York City Hous. Auth., 173 A.D.3d 1196, 1196-1197). In opposition, the plaintiff failed to raise a triable issue of fact (see Palladino v New York City Hous. Auth., 173 A.D.3d at 1196-1197).

The plaintiff's contention that the Leighton defendants negligently delayed responding to the elevator alarm was a new theory of liability improperly raised for the first time in opposition to the defendants' motions for summary judgment, having not been raised in the complaint or bill of particulars (see Silber v Sullivan Props., L.P., 182 A.D.3d 512, 513; Iodice v Giordano, 170 A.D.3d 971, 972; Taustine v Incorporated Vil. of Lindenhurst, 158 A.D.3d 785, 786). Accordingly, the Supreme Court properly granted that branch of the Leighton defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.

We reach a different conclusion, however, with respect to the Supreme Court's determination of that branch of Otis's motion which was for summary judgment dismissing the complaint insofar as asserted against it. "An elevator...