MARTINEZ v. Central Elevator, Inc., Defendant. (2001)

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

Emma MARTINEZ, Plaintiff-Respondent, v. HERK ELEVATOR CO., INC., Defendant-Appellant, Central Elevator, Inc., Defendant.

Decided: May 17, 2001

SULLIVAN, P.J., NARDELLI, WILLIAMS, RUBIN and MARLOW, JJ.

Laurence Warshaw, for Plaintiff-Respondent. Dawn C. DeSimone, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Anne Targum, J.), entered October 25, 2000, which, to the extent appealed from, denied the motion of defendant Herk Elevator Co. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Herk Elevator's motion for summary judgment was properly denied in light of Herk's repair records pertaining to the subject elevator indicating a misleveling problem and Herk's failure to establish that it corrected that problem when it last serviced the elevator prior to plaintiff's accident, the alleged result of the elevator's misleveling (compare, Overholt v. Atlas El. Co., 258 A.D.2d 887, 685 N.Y.S.2d 348).

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