Torres-Martinez v. Macy's, Inc.

• Decision Date: 24 January 2017
• Citation: 2017 N.Y. Slip Op. 00429,45 N.Y.S.3d 449,146 A.D.3d 638
• Parties: Yvette TORRES–MARTINEZ, Plaintiff–Appellant, v. MACY'S, INC., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 638

45 N.Y.S.3d 449

2017 N.Y. Slip Op. 00429

Yvette TORRES–MARTINEZ, Plaintiff–Appellant,

v.MACY'S, INC., et al., Defendants–Respondents.

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

Jan. 24, 2017.

Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph III of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Stewart G. Milch of counsel), for Macy's, Inc., respondent.

Babchik & Young, LLP, White Plains (Matthew J. Rosen of counsel), for ThyssenKrupp Elevator Corporation, respondent.

RENWICK, J.P., SAXE, GISCHE, WEBBER, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about June 12, 2015, which granted defendants' motions for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

Defendants established prima facie that they had no notice of the allegedly defective condition of the escalator, and plaintiff failed to raise a triable issue of fact. Macy's operations manager and ThyssenKrupp's elevator mechanic both testified that they did not receive any reports of the escalators shaking or stopping and starting before the date of plaintiff's accident; nor did anyone, including plaintiff, before her July 2009 accident, observe the escalators stop and start several times in succession (see Santoni v. Bertelsmann Prop., Inc., 21 A.D.3d 712, 800 N.Y.S.2d 676 [1st Dept.2005] ). The printout submitted by plaintiff's expert in support of his opinion was unauthenticated and therefore inadmissible as evidence of any previous accidents on the escalators (see Vasquez v. The Rector, 40 A.D.3d 265, 266–267, 835 N.Y.S.2d 159 [1st Dept.2007] ). In any event, the bareboned printout did not indicate that the prior incidents were similar to or caused by the same or similar contributing factors causing this accident (Gjonaj v. Otis El. Co., 38 A.D.3d 384, 832 N.Y.S.2d 189 [1st Dept.2007] ; Chunhye Kang–Kim v. City of New York,

29 A.D.3d 57, 60–61, 810 N.Y.S.2d 147 [1st Dept.2006] ). The fact that Macy's made service calls to ThyssenKrupp on January 15, 2009 and February 15, 2009, because the escalator from the basement to the main level was not running, does not raise an issue of fact as to notice, since there is no evidence that those calls were occasioned by the type of malfunctioning plaintiff describes (see id. ).

Defendant's expert opined that the accident, as described by plaintiff, was a mechanical impossibility, since it would have resulted in a catastrophic failure of the running or driving mechanisms, which would have required a significant repair, and the escalator would not have continued to run without observable problems following the accident, when it was inspected by ThyssenKrupp or the Department of Buildings. Plaintiff's expert's opinion that the accident was proximately caused by a defective step chain and a lack of proper and adequate preventative maintenance is speculative and conclusory (see Santoni, 21 A.D.3d at 714–715, 800 N.Y.S.2d 676 ; Bazne v. Port Auth. of N.Y. & N.J., 61 A.D.3d 583, 877 N.Y.S.2d 321 [1st Dept.2009] ).

The doctrine of res ipsa loquitur, which would permit a fact finder to infer negligence based upon the sheer happening of the event, is...