DOMOGJONI v. Schindler Elevator Corporation, Defendant–Appellant. (2025)

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered on or about October 26, 2018, which, to the extent appealed from, denied defendant Schindler Elevator Corporation's cross-motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Defendant, an escalator maintenance contractor, failed to establish its prima facie burden on summary judgment that it was not responsible for the alleged accident that occurred when the stopped escalator that plaintiff's decedent was walking down suddenly started shaking, causing him to fall and sustain injuries.  Defendant's expert's affidavit failed to demonstrate that decedent's account of how the accident occurred was a “physical or mechanical impossibility” (Smith v. Consolidated Edison Co. of N.Y., Inc., 104 A.D.3d 428, 429, 961 N.Y.S.2d 73 [1st Dept. 2013];  cf.  Cinquemani v. Otis El. Co., 179 A.D.3d 588, 588, 117 N.Y.S.3d 233 [1st Dept. 2020]).  Furthermore, defendant's witnesses' testimony and work records failed to demonstrate an absence of actual or constructive notice of a defect in the escalator (see Carter v. HP Lafayette Boynton Hous. Dev. Fund Co., Inc., 210 A.D.3d 580, 580, 178 N.Y.S.3d 521 [1st Dept. 2022]).  Even if defendant met its initial burden, the parties' conflicting expert affidavits raised triable issues of fact, making an award of summary judgment inappropriate (see Trotman v. Precision El. Corp., 233 A.D.3d 458, 459, 221 N.Y.S.3d 105 [1st Dept. 2024]).