Tashjian v. Strong & Associates

• Decision Date: 14 March 1996
• Citation: 225 A.D.2d 907,639 N.Y.S.2d 507
• Court: New York Supreme Court — Appellate Division
• Parties: Jacqueline B. TASHJIAN, Respondent, v. STRONG & ASSOCIATES, Doing Business as 11 North Pearl Condominium, et al., Appellants, and Schindler Elevator Company et al., Appellants-Respondents.

Page 507

639 N.Y.S.2d 507

225 A.D.2d 907

Jacqueline B. TASHJIAN, Respondent, v. STRONG & ASSOCIATES, Doing Business as 11 North Pearl Condominium, et al., Appellants and Schindler Elevator Company et al., Appellants-Respondents.

Supreme Court, Appellate Division Third Department.

March 14, 1996.

Carter, Conboy, Case, Blackmore, Napierski & Maloney P.C. (Nancy E. May-Skinner, of counsel), Albany, for Strong & Associates and another, appellants.

Cusick, Hacker & Murphy (James E. Hacker, of counsel), Latham, for Schindler Elevator Corporation, appellant.

Linnan Law Firm (James D. Linnan, of counsel), Albany, for respondent.

Before MERCURE, J.P., and CREW, CASEY, YESAWICH and SPAIN, JJ.

MERCURE, Justice Presiding.

Appeals (1) from an order of the Supreme Court (Harris, J.), entered July 13, 1994 in Albany County, which, inter alia, denied defendants' motions for summary judgment dismissing the complaint, and (2) from an order of said court, entered November 15, 1994 in Albany County, which denied a motion by defendants Strong & Associates, 11 North Pearl Associates and Blake Management Company Inc. for summary judgment on their cross claim seeking indemnification from defendants Schindler Elevator Company and Schindler Elevator Corporation.

Plaintiff brought these consolidated actions to recover for personal injuries she sustained on August 2, 1988 when, in the process of exiting an elevator on the 16th floor of an office building in the City of Albany, the heel of her shoe became wedged in the space between the landing and the elevator cab. The theory underlying plaintiff's claims is that her injuries were proximately caused by a misleveling of the elevator, which she asserts came to rest with its floor approximately 2 to 4 inches higher than the 16th floor landing as the result of the negligence of the owner and manager of the property, defendants Strong & Associates, 11 North Pearl Associates and Blake Management Company Inc. (hereinafter collectively referred to as the owners), and of the entity that contracted to perform maintenance and service on the elevator, alternatively sued as defendants Schindler Elevator Company and Schindler Elevator Corporation (hereinafter collectively referred to as Schindler). Schindler and the owners appeal Supreme Court's order denying their respective motions and cross motions for summary judgment dismissing the complaint against them and granting plaintiff's motion to amend her pleadings to assert the doctrine of res ipsa loquitur. In addition, the owners appeal an order of Supreme Court that denied their motion for summary judgment on their cross claim for indemnification against Schindler.

It is fundamental that defendants may be liable for failure to correct conditions of which they had knowledge or "failure to use reasonable care to discover and correct a condition which [they] ought to have found" (Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403). On their motions for summary judgment dismissing the complaint, the owners and Schindler each submitted competent evidence establishing prima facie that, prior to plaintiff's accident, they received no actual or constructive notice of any defective condition in the elevator. To the contrary, Schindler produced work tickets for a period of three months preceding plaintiff's accident and the deposition testimony of its repair technician, showing weekly maintenance and inspection of the elevator (referred to as elevator No. 3). On each such occasion, the elevator was tested for misleveling and found to perform satisfactorily. During the same time period, the elevator received annual safety checks by both Schindler and the City of Albany and, again, no defective condition was noted. Further, Schindler produced a diary of telephone calls (referred to as "blotter sheets") it received regarding the functioning of elevators it serviced, and no complaints were made that elevator No. 3 had misleveled. Finally, plaintiff herself testified that she used the subject elevator on a regular basis for a period of three years prior to the accident and never experienced any problems with it. Based upon the foregoing, we conclude that defendants made an ample showing that they had neither actual nor constructive notice of any defective condition in elevator No. 3 such as would make it prone to misleveling (see, Di Marco v. Westinghouse Elec. Corp., 170 A.D.2d 760, 761, 565 N.Y.S.2d 320; Birdsall v. Montgomery Ward & Co., 109 A.D.2d 969, 971-972, 486 N.Y.S.2d 461, affd. 65 N.Y.2d 913, 493 N.Y.S.2d 456, 483 N.E.2d 131; Koch v. Otis El. Co., 10 A.D.2d 464, 467, 200 N.Y.S.2d 700; cf., Rogers v. Dorchester Assocs., supra).

In opposition to the motion, plaintiff advanced the theory that defendants were on notice of the dangerous and defective condition of elevator No. 3 because of their knowledge that (1) the building's elevator control room was poorly ventilated and thus prone to excessive temperatures, (2) elevator Nos. 2 and 3 were controlled by a mixture of Otis and Schindler...