DELUISE BRODSKY v. Dover Elevator, Appellant-Respondent. (2001)

Judgment entered September 15, 1999 (Laura G. Douglas, J.) modified by vacating the indemnification award in favor of defendant Schulman against defendant Dover;  as modified, judgment affirmed, without costs.

Appeal from order dated August 11, 1999 (Laura G. Douglas, J.) dismissed, without costs, as the right of direct appeal therefrom terminated with the entry of the judgment (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order were brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

 A fair interpretation of the evidence supports the jury's liability verdict, which, in large part, depended upon its assessment of lay and expert witness credibility.   Contrary to the argument of the defendant elevator maintenance company (Dover), negligence on its part was reasonably inferred based upon evidence that it failed to properly repair the elevator despite receiving complaints regarding misleveling and related problems prior to plaintiff's accident (see, Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 559-562, 347 N.Y.S.2d 22, 300 N.E.2d 403;  Dickman v. Stewart Tenants Corp., 221 A.D.2d 158, 633 N.Y.S.2d 35).   Defendant Dover's negligence was also established through proper application of the doctrine of res ipsa loquitur.   The six-inch misleveling shown to have caused plaintiff's fall “ordinarily would not occur in the absence of someone's negligence, [maintenance of] the elevator was within defendant [Dover's] exclusive control, and plaintiff did not in any way contribute to the misleveling” (Dickman v. Stewart Tenants Corp., supra, citing Burgess v. Otis El. Co., 114 A.D.2d 784, 785-787, 495 N.Y.S.2d 376, affd. 69 N.Y.2d 623, 511 N.Y.S.2d 227, 503 N.E.2d 692).

 The defendant building owner (Schulman) was not entitled to indemnification against defendant Dover in the circumstances here present, where the trial evidence permitted a finding that Schulman was actively negligent in allowing the elevator to be restored prematurely to service after it initially was shut down and where the jury found Schulman, not Dover, predominantly liable for plaintiff's injuries (see, Nivens v. New York City Hous. Auth., 246 A.D.2d 520, 522, 667 N.Y.S.2d 415;  cf., Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 555 N.Y.S.2d 669, 554 N.E.2d 1257).

We have considered and rejected the remaining contentions raised by defendants-appellants on their respective cross appeals.

PER CURIAM.