Tucci v. Starrett City, Inc.

• Decision Date: 25 July 2012
• Parties: Joseph TUCCI, respondent, v. STARRETT CITY, INC., appellant-respondent, Schindler Elevator Corporation, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 811

949 N.Y.S.2d 419

2012 N.Y. Slip Op. 05736

Joseph TUCCI, respondent,

v.STARRETT CITY, INC., appellant-respondent,Schindler Elevator Corporation, respondent-appellant.

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

July 25, 2012.

Brody, Benard & Branch, LLP, New York, N.Y. (Tanya M. Branch of counsel), for appellant-respondent.

Sonageri & Fallon, LLC, Garden City, N.Y. (James C. DeNorscia of counsel), for respondent-appellant.

DANIEL D. ANGIOLILLO, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the defendant Starrett City, Inc., appeals from so much of an order of the Supreme Court, Kings County (Vaughan, J.), entered March 1, 2011, as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, or alternatively, for summary judgment on its cross claims against the defendant Schindler Elevator Corporation for common-law and contractual indemnification, and the defendant Schindler Elevator Corporation cross-appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the plaintiff, that branch of the cross motion of the defendant Starrett City, Inc., which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted, the motion of the defendant Schindler Elevator Corporation for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted, and the alternate branch of the cross motion of the defendant Starrett City, Inc., which was for summary judgment on its cross claims against the defendant Schindler Elevator Corporation for common-law and contractual indemnification is denied as academic.

The plaintiff alleges that he was injured when an elevator in the parking garage of an apartment complex owned by the defendant Starrett City, Inc. (hereinafter Starrett City), malfunctioned and descended more rapidly than normal, coming to an abrupt stop on the ground floor. Following the accident, the plaintiff commenced this action against Starrett City and the defendant Schindler Elevator Corporation (hereinafter Schindler), the company retained to service and maintain the apartment complex's elevators, claiming that the elevator's alleged malfunction had been caused by their negligence. After discovery had been conducted, Schindler moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and Starrett City cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, or, alternatively, for summary judgment on its cross claims against Schindler for common-law and contractual indemnification. The Supreme Court denied Schindler's motion and Starrett City's cross motion.

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 ( see Cilinger v. Arditi Realty Corp., 77 A.D.3d 880, 882, 911 N.Y.S.2d 75;Lee v. City of New York, 40 A.D.3d 1048, 1049, 836 N.Y.S.2d 688), or where it fails to notify the elevator company with which it has a maintenance and repair contract about a known defect ( see Isaac v. 1515 Macombs, LLC, 84 A.D.3d 457, 458, 922 N.Y.S.2d 354;Oxenfeldt v. 22 N. Forest Ave. Corp., 30 A.D.3d 391, 392, 816 N.Y.S.2d 563). An elevator company which agrees to maintain an elevator in safe operating condition can also be held liable to an injured 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 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403;see Cilinger v. Arditi Realty Corp., 77 A.D.3d at 882, 911 N.Y.S.2d 75). Applying...